HL Deb 22 February 1979 vol 398 cc2017-30

4.8 p.m.

Report of Amendments received.

Clause 1 [Protected wild creatures to be known as endangered wild creatures]:

Lord SKELMERSDALE moved Amendment No. 1: Page 1, line 5, after ("In") insert ("sections 1, 3, 6, 8, 10 and 11 of").

The noble Lord said: My Lords, with the permission of the House, I shall speak also to Amendment No. 2, for both are drafting Amendments. They specify in the earliest possible place in the Bill the particular section of the principal Act in which references to an "endangered" wild creature are substituted for references to a "protected" wild creature. I beg to move.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 2: Page 1, line 6, leave out from second ("Act") to ("there") in line 9 and insert ("and in the definition of "authorised person" in section 15(1) of that Act for the word "protected", wherever it occurs,").

On Question, Amendment agreed to.

[Amendment No. 3 not moved.]

Lord SKELMERSDALE moved Amendment No. 4: Page 1, line 11, leave out subsection (2).

The noble Lord said: My Lords, this Amendment is contingent upon Amendment No. 22 and the third part of the new clause which I am asking your Lordships to insert after Clause 7. Subsection (3) of Amendment No. 22 contains a minor drafting Amendment which is intended to ensure that the word "wild" in Section 10(d) of the principal Act does not qualify the word "plant". The point is that "plant" is defined in Section 15(1) of the principal Act as meaning: … subject to subsection (2) of this section, any plant growing wild on any land".

I beg to move.

On Question, Amendment agreed to.

4.10 p.m.

Lord SKELMERSDALE moved Amendment No. 5: Page 1, line 18, leave out ("or pupae of any such") and insert ("pupae or other immature stages of any such wild").

The noble Lord said: My Lords, in Committee—and here I must express my gratitude to my noble friends Lord Cranbrook and Lord Craigton—we got very briefly into a discussion about zoological stages from egg to adulthood, and this Amendment is intended to satisfy all points of view. I am advised that it is thought unnecessary to mention the word "nymphs" as such since they are now adequately covered by the general words "taking account of other immature stages". To mention nymphs as such would be confusing because in fact there are other stages in adult development, such as the "in-star" stage in the development of a caterpillar which would also have to be mentioned. Therefore I hope your Lordships will agree that the words in the Amendment are preferable. I beg to move.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 6:

Page 2, line 2, at end insert— ("( ) For Schedule 1 to the principal Act there shall be substituted the following Schedule:—

("SCHEDULE 1 ENDANGERED WILD CREATURES
Area where restrictions apply
Common name Scientific name
Greater Horse-shoe Bat Rhinolophus ferrumequinum
Mouse-eared Bat Myotis myotis
Common Otter Lutra lutra England and Wales".").
Sand Lizard Lacerta agilis
Smooth Snake Coronella austriaca
Natterjack Toad Bufo calamita
Large Blue Butterfly Maculinea arion

The noble Lord said: My Lords, this is a paving Amendment for the second part of Amendment No. 23. In one of my discussions with the Department which the noble Baroness represents I was invited to move for the revocation of the Otters Order 1977 and I am advised that the only way this can be done in the Bill is to print the Schedule in the earliest possible place in the Bill, as it should appear. I beg to move.

On Question, Amendment agreed to.

Clause 2 [Vulnerable wild creatures]:

4.12 p.m.

Lord SKELMERSDALE moved Amendment No. 7: Page 2, line 3, transpose subsection (1) to end of line 36 on page 3.

The noble Lord said: My Lords, this is a purely drafting Amendment. It is a much neater way of setting out the words in this clause. I beg to move.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendments Nos. 8, 9 and 10:

Page 3, line 14, leave out ("or marking") line

Page 3,17, leave out ("or marked") line

Page 3,19, leave out ("or marking").

The noble Lord said: My Lords, with the permission of the House I will also speak to Amendments Nos. 12 and 13 and the consequential Amendments Nos. 27, 28, 30 and 34. At the last stage of the Bill I gave an undertaking to the noble Baroness that I would seek further advice on the desirability of any authorised person being able to mark a vulnerable wild creature. I have now taken this advice from the Nature Conservancy Council, which of course is the competent authority under this Bill, and I am told by them that there are many vulnerable creatures which would be damaged by marking if the marking was done by inexperienced persons, which of course is the danger if this marking is left to "authorised persons". Therefore I hope your Lordships will agree with this Amendment. The licensing provisions here are already covered by Section 8(1)(d), as amended in accordance with the provisions of the Bill. I beg to move.

The DEPUTY SPEAKER

My Lords, with your Lordships' permission, I will put Amendments Nos. 8, 9, and 10 en bloc.

Lord CRAIGTON

My Lords, I should just like to say that everybody concerned with the conservation of wild creatures will be glad to see the last of that word "marking".

On Question, Amendments agreed to.

Lord CRAIGTON moved Amendment No. 11:

Page 3, line 20, at end insert— ("( ) In section 1(1) of the principal Act for the words "his action was necessary for the purpose of preventing" there shall be substituted the words "no other course of action was open to him to prevent".").

The noble Lord said: My Lords, with the leave of the House I have given notice to the Table that I wish to move a manuscript Amendment to my Amendment: it is the addition of the word "reasonable". I wanted to add the words "no other course of action was open to him to prevent" and I now want the Amendment to read "no other reasonable course of action was open to him to prevent". What I say here also applies to consequential Amendment No. 26.

This is a fairly narrow but nevertheless important point. As the Bill is now worded, a person is not guilty of an offence "if he satisfies the court before whom he is charged that his action was necessary for the purpose of preventing …" et cetera. I want to say that no other "reasonable" course was open to him. Put very simply, under the Bill as it stands the farmer can say, "The otter was taking my poultry and I killed it". If my Amendment is accepted, as I hope it will be, the farmer has to explain why he did not call in an expert, or even what steps he took to strengthen the chicken-run. It is a small point. It is going to give a little protection, and I hope it will be accepted. I beg to move.

Amendment moved—

Page 3, line 20, at end insert— ("( ) In section 1(1) of the principal Act for the words "his action was necessary for the purpose of preventing" there shall be substituted the words "no other reasonable course of action was open to him to prevent".")—(Lord Craigton.)

The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Stedman)

My Lords, may I say that so far as the Government are concerned we were not happy with the Amendment as it originally stood, but we are happier now that we have the word "reasonable" added by the Manuscript Amendment.

Lord SKELMERSDALE

My Lords, I am still a little unclear about this Amendment. It would have seemed to me that if the action was necessary it was also necessarily reasonable. But having made that comment, I do not object to the Amendment as moved by the noble Lord.

Lord WYNNE-JONES

My Lords, if I may comment on this, it is very rarely that I find anything the noble Lord, Lord Craigton, says, not absolutely clear, but I am inclined to agree on this occasion with the noble Lord, Lord Skelmersdale. If action is taken which is necessary, then I do not think one has to bring in all sorts of other qualifying words. While the use of these qualifying words—if my noble friend Lady Stedman will forgive me—is always very acceptable to a Government department, because they produce a degree of uncertainty which is highly desirable, it seems to me that the original statement in the Bill is perfectly clear. I would not have thought it necessary to bring in a word such as "reasonable". If one is dealing with law one assumes that actions are reasonable. If one has to qualify every statement by saying that the action must be reasonable, it seems to me that all it does is to say that at any moment someone in the Department may come along and say, "We do not think it reasonable". In whose mind is the reason? I would have thought it much better to leave out a word like "reasonable".

Baroness STEDMAN

My Lords, if I can come to the help of my noble friend, we did look at this and we decided that as the Amendment was originally submitted it meant that a defendant in court had to satisfy the court that as an authorised person he killed or attempted to kill or took a wild creature and that no other action was possible to prevent that creature from damaging crops or property. If the Amendment had remained like that, I would have had to advise the House that it would be safer to reject it. The Amendment which the noble Lord has now put in— "no other reasonable course of action" —means that whereas under the original Amendment the court could have required the defendant to take quite unreasonable measures, and certainly might very well have led the defendant into considerable expense, the Amendment now changed, to "no other reasonable course of action", we think more acceptable. I hope my noble friend will not press his objection.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 12: Page 3, line 24, leave out subsection (4).

The noble Lord said: My Lords, I spoke to this Amendment with my previous Amendment, No. 8. However, it would probably be helpful to your Lordships if I said this Amendment seeks to omit subsection (4) of Clause 2.

Whereas at one time it was thought that marking a vulnerable wild creature would not be likely to cause harm, the point here is that, the view, as I am advised by the Nature Conservancy Council, is that there is a danger to vulnerable wild creatures by marking them. As I said previously, the matter ought to be dealt with by licensing. I beg to move.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 13: Page 3, line 27, after ("sections") insert ("3").

The noble Lord said: My Lords, this Amendment is consequential on the last Amendment. I beg to move.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 14: Page 3, line 27, after ("10") insert ("and")

The noble Lord said: My Lords, this is a pure drafting Amendment. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 15 not moved.]

Lord SKELMERSDALE moved Amendment No. 16: Page 3, line 35, leave out ("or pupae") and insert ("pupae or other immature stages").

The noble Lord said: My Lords, I spoke in effect to this Amendment when we were dealing with exactly the same situation as regards the definition of "endangered wild creature". The Amendment is paralleled in the Schedule by Amendment No. 38. I beg to move.

On Question, Amendment agreed to.

Clause 3 [Disturbance of certain wild creatures]:

The DEPUTY SPEAKER

My Lords I should point out that, if Amendment No. 17 is agreed to, I cannot call Amendment No. 18. I apologise to the noble Lord, Lord Skelmersdale, for having pronounced his name incorrectly hitherto.

Lord SKELMERSDALE moved Amendment No. 17:

Page 3, line 42, leave out from ("which") to end of line 5 on page 4 and insert ("an endangered or vulnerable wild creature uses for shelter or protection; or (b) wilfully disturbs any such creature while it is occupying any structure or place which it uses for that purpose,").

The noble Lord said: My Lords, I am very grateful to the noble Lord the Deputy Speaker. We now reach an Amendment of substance. It is of substance in two respects. First, it substitutes for the reference to a structure or place which is used for shelter or protection a reference to, a structure or place which a wild creature uses—in other words, it is in the present tense—for shelter and protection. In the passive tense, the words "is used" imply a casual connection with the relevant structure or place, whereas the active tense indicates that the structure or place has to be in current active use.

Secondly, the Amendment omits the qualifying words "being a mammal" which again was a point that I promised to look at after the Committee stage. It thus extends the scope of the offence in the new Section 1A to cover all endangered and vulnerable wild creatures. Therefore, the Amendment overtakes, and goes further than, the proposal of my noble friend Lord Craigton in the next Amendment to insert a reference to amphibians and reptiles. I hope that he will agree with that proposal. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 18 not moved.]

Clause 5 [Forfeitures]:

Lord SKELMERSDALE moved Amendment No. 19:

Page 5, line 5, at beginning insert— ("( ) In section 11(1) of the principal Act for the words "£200" there shall be substituted the words "£500". (1A) ").

The noble Lord said: My Lords, this is a purely drafting Amendment to cover the increase of the penalty in the principal Act from £200 to £500 which we agreed in Committee. It is a neater place in the Bill to put it rather than Clause 6, which I am asking your Lordships permission to remove in Amendment No. 21. I beg to move.

Baroness STEDMAN

My Lords, I said during the Committee stage that we had persuaded the Home Office, subject to the sending of a satisfactory explanation, that it was right and proper for us to increase the amount of the fine. We have now sent that explanation to the Home Office and I understand that it has been accepted. Therefore there are no problems.

Lord MISHCON

My Lords, I apologise for intervening as regards this matter, as I did shortly during the Committee stage. As I understood it, the reasoning behind the increase of the penalty as given then was that first, there should be a deterrent, and secondly there should not be an element of profit available to an offender. In the course of that discussion it was mentioned that indeed a sale might take place—although one did not want to force up the price—at a price of roughly £600. I ventured then to ask whether consideration could be given, bearing in mind that this is a maximum penalty and that all factors in mitigation could be taken into account by the court, to the convenient figure of £1,000. May I know whether that was considered in the communication with the Home Office and generally and whether it is still the decision that £500 is appropriate?

Baroness STEDMAN

My Lords, perhaps I may read the relevant passage of the explanation to the Home Office. We told them: An otter can be valued at well over £600 (1976 figure) and whilst it is true that the animals/ skins may be confiscated by a court it is quite possible that they may by then already be out of the vendors possession; magistrates court costs would add very little to the penalty. In the circumstances it would be inappropriate for magistrates to be unable to levy a level of fine which would act as very little deterrent to a determined ' rogue ' who is not even gentleman enough to be offended by the opprobrium of conviction. As regards limiting the fine to otters, two points arise—in the first place some other rare specimens may fetch equally high prices (e.g. the emerald green moth which is about to be added to the schedule) and there is the possibility that others may be added which could have equally high values. We are convinced that the level of fine must allow magistrates a reasonable chance to prevent a felon from making a profit from deliberately undertaking illegal activities in this field. In the circumstances you agreed, provided the level of fine was consistent with your new scales and I am grateful for your assistance.". This is the level of fine which is consistent with the magistrate's new scales and the £1,000 would have taken it rather out of the run of all the other offences that are subject to the same sort of fine.

Lord MISHCON

My Lords, with respect, I shall obviously not persist in this, but does the noble Baroness agree that in the explanation she gave she was covering my point by reasoning, but not covering my point in the result? Quite obviously, it is still the possibility that a profit could be made; that the rogue of whom she spoke could, therefore, receive, as a maximum penalty, less than the profit he might obtain from his roguery. In all the circumstances, whether or not this is consistent with other fines imposed in other sections in other Acts, does she not think it is appropriate that there should be a maximum fine of £1,000?

Baroness STEDMAN

My Lords, no. Speaking personally and with the advice of my Department, which looked into this matter, we think that the level at which it has now been fixed is the proper one at this point in time. Obviously, if there are some changes in future in other legislation which alter the range of fines on all kinds of things, this also is one of the offences that will have to be taken into consideration then, and, if necessary, the level of fine altered.

Lord MOWBRAY and STOURTON

My Lords, I should like to put a suggestion to the noble Lord. Is it not possible that when it is forbidden to sell something, one would not get the full market price? It is rather like a burglar selling his goods; he will receive only a proportion of the value, because at the end of the day the man who buys those goods cannot put them in his shop window because it is forbidden to sell them there. Although technically an otter could fetch more than £600, it will be a very, very clever man who manages to get anything like that figure if he just catches one and tries to "flog" it where he can.

Lord SKELMERSDALE

My Lords, perhaps this is an appropriate time for me to sum up this Amendment. The issues have been discussed very fully this afternoon and they were also discussed very fully at the Committee stage of the Bill. I would only add that there will certainly be magistrates' fines in one form or another and legal costs to be added to the fines which are imposed by the magistrates' court. Therefore, I do not think that £500 is an unreasonably low sum in this respect.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 20: Page 5, line 15, after ("In") insert ("consequence of subsection (1A) above in").

The noble Lord said: My Lords, this, again, is a pure drafting Amendment. It is to make sure that the second subsection of Clause 5 follows in consequence of the first subsection. I beg to move.

On Question, Amendment agreed to.

Clause 6 [Penalties]:

Lord SKELMERSDALE moved Amendment No. 21: Leave out Clause 6.

The noble Lord said: My Lords, I spoke to this Amendment when I spoke on my previous Amendment, No. 19. I beg to move.

On Question, Amendment agreed to.

4.30 p.m.

Lord SKELMERSDALE moved Amendment No. 22: After Clause 7, insert the following new clause:

Minor amendments of the principal Act .—(1) In section 2(2) of the principal Act for the words from "and any reference" onwards there shall be substituted the words "and any reference to a dead creature shall be construed as including a reference to any part of, or anything derived from, such a creature". (2) In section 9 of the principal Act immediately before the words "name and address", in the first place where they occur, there shall be inserted the word "full". (3) In section 10(d) of the principal Act immediately before the word "plant" there shall be inserted the word "any ".").

The noble Lord said: My Lords, I spoke to this in part on my previous Amendment, No. 3. The new clause is divided into three parts. The first, subsection (1), is paralleled by Amendment No. 33, and is again meant to meet Lord Craigton's point about the need to insert a reference to parts or derivatives in Section 2(2) of the principal Act. My noble friend's Amendment would have substituted the words "skeletons, parts or derivatives" for the existing words "or skeletons". It would seem to me that skeletons are already parts, and I hope that perhaps he will agree to this simplified form of wording.

The second subsection is paralleled by Amendment No. 35 and inserts the word "full" in Section 9 of the principal Act, to make good an inconsistency between what an authorised person or constable may require a person to give by way of his name and address, and the offence which is also in this Act of refusing to give his full name and address. I have already spoken to subsection (3), which is consequential on Amendment No. 4 to leave out subsection (2) of Clause 1. I beg to move.

On Question, Amendment agreed to.

Clause 8 [Short title, etc.]:

Lord SKELMERSDALE moved Amendment No. 23:

Page 6, line 27, at end insert— ("( ) The enactments mentioned in Schedule (Enactments repealed) to this Act are hereby repealed to the extent specified in the third column of that Schedule and the Conservation of Wild Creatures and Wild Plants (Otters) Order 1977 is hereby revoked.").

The noble Lord said: My Lords, this Amendment inserts a new subsection to provide for a Schedule of repeals to have effect and also, as I said before, to revoke the Otters Order 1977. This last is unnecessary since the common otter has now been included in the revised Schedule 1 which has been entered into the Bill by Amendment No. 6. I beg to move.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 24: Page 6, line 29, leave out from beginning to ("and") in line 32.

The noble Lord said: My Lords, this Amendment omits from the main Schedule to the Bill the references to the Criminal Law Act which are now unnecessary because of the revision of the fine to £500 in place of £200, which it would have been had the Criminal Law Act affected this particular range of fines, and also the Otter Order 1977, to which I have already referred many times. I beg to move.

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendment No. 25: After Clause 8, insert the following new schedule—

("SCHEDULE ENACTMENTS REPEALED
Chapter Short title Extent of repeal
1975 c. 48. The Conservation of Wild Creatures and Wild Plants Act 1975. In section 10(d) the words "or restored". Section 14(2). In section 15(1) the definition of "protected wild creature ".")

The noble Lord said: My Lords, this is the substantive part and the summing up of all repeals in the principal Act made by the Bill. It is thus drafting. I beg to move.

On Question, Amendment agreed to.

Schedule [The Conservation of Wild Creatures and Wild Plants Act 1975 as Amended]:

4.33 p.m.

Lord CRAIGTON moved Amendment No. 26: Page 7, line 18, leave out from ("that") to ("serious") in line 19 and insert ("no other course of action was open to him to prevent").

The noble Lord said: My Lords, with the addition of the word "reasonable", I beg to move. This was discussed with a previous Amendment.

Amendment moved— Page 7, line 18, leave out from ("that") to ("serious") in line 19 and insert ("no other reasonable course of action was open to him to prevent")

—(Lord Craigton.)

On Question, Amendment agreed to.

Lord SKELMERSDALE moved Amendments Nos. 27, 28, 29 and 30:

Page 7, line 23, leave out ("or marking")

Page 7, line 25, leave out ("or marked")

Page 7, line 26, after ("released") insert "uninjured")

Page 7, line 27, leave out ("or marking")

The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 27 to 30 en bloc. They are all consequential on the new necessity of having a licence to mark vulnerable wild creatures. In passing, I should say that Amendment No. 29, which is also covered by this general point, is to correct an omission in preparing the parallel Amendment at the Committee stage. I beg to move.

On Question, Amendments agreed to.

4.35 p.m.

The DEPUTY SPEAKER

My Lords, I should point out that if Amendment No. 31 is accepted, No. 32 cannot be moved.

Lord SKELMERSDALE moved Amendment No. 31:

Page 7, line 31, leave out from beginning to end of line 34 and insert ("an endangered or vulnerable wild creature uses for shelter or protection; or (b) wilfully disturbs any such creature while it is occupying a structure or place which it uses for that purpose,").

The noble Lord said: My Lords, this is the parallel of Amendment No. 17 to which noble Lords agreed in preference to Amendment No. 18. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 32 not moved.]

Lord SKELMERSDALE moved Amendments Nos. 33 to 36:

Page 8, line 2, leave out from second ("and") to end of line 4 and insert ("and any reference to a dead creature shall be construed as including a reference to any part of, or anything derived from, such a creature.")

Page 8, line 6, after ("endangered") insert ("or vulnerable")

Page 10, line 23, after ("his") insert ("full")

Page 12, line 26, leave out ("or pupae") and insert ("pupae or other immature stages").

The noble Lord said: My Lords, these are all consequential on previous Amendments. I beg to move.

On Question, Amendments agreed to.

[Amendment No. 37 not moved.]

Lord SKELMERSDALE moved Amendment No. 38: Page 13, line 16, leave out ("or pupae") and insert ("pupae or other immature stages").

The noble Lord said: My Lords, this is contiguous on Amendment No. 16; it parallels it. I beg to move.

On Question, Amendment agreed to.

Baroness STEDMAN

My Lords, before we leave the Bill, I wish from the Government Benches to thank the noble Lord, Lord Skelmersdale, and welcome the improvements he has made yet again at this stage to the Bill. We hope now that we shall have a very early Third Reading, after the Nature Conservancy Council have had their next meeting. We hope they will give their blessing to the Bill, and then we can go full steam ahead.

Lord SKELMERSDALE

My Lords, I am grateful to the noble Baroness, but I should point out that without the help of herself and the officials of her Department, doing all this would have been quite impossible for me.