Wildlife and Countryside Bill [H.L.]

HL Deb 03 February 1981 vol 416 cc1112-92

Lord Denham

My Lords, in moving that the House do now again resolve itself into a Committee on the said Bill, may I say that conversations have been held through the usual channels and, although we were very much hoping that we might reach the end of Part I tonight—that is, the end of Clause 25—I do not think it really looks very likely or achievable at the moment. So we have arranged that, with your Lordships' permission, the House shall sit until the most suitable and convenient moment around half-past twelve.

I hope that the House, interested though noble Lords are in this Bill and important though some of the provisions are, will treat the matter as expeditiously as possible. Having the cut-off point at round about half-past twelve, let us try in that time to get as far as we possibly can towards the unachievable goal that we have set ourselves. If your Lordships will be kind enough to aim to get as far as possible it will be very helpful indeed. Otherwise it might prove difficult in future years for us to get our right share of important legislation starting in this House in the volume that we should like. I beg to move that the House do now again resolve itself into a Committee on the Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Denham.)

Baroness Llewelyn-Davies of Hastoe

My Lords, with the permission of the House, may I respond to what the noble Lord has said? We on this side entirely agree about the timing. But I am not sure that it might not be politic and useful for him to repeat the last part of his statement when his own Benches are rather fuller. I am sure that the Committee will give him permission to interrupt and do so. He would have, anyway, a great deal of support from this side.

On Question, Motion agreed to.

House again in Committee, on Clause 11.

[Amendments Nos. 156 to 159 not moved.]

8.3 p.m.

The Earl of Cranbrook moved Amendment No. 161: Page 12, line 24, after ("aforesaid,") insert ("unless any such trap be designed to hold the animal alive and uninjured and any such animal caught is intended to be and is subsequently released alive into the wild").

The noble Earl said: This amendment is raised because there is some concern among members of the Mammals Society, concerning the interpretation of Clause 11(2)(b). I must say that it has a phraseology which I find extraordinarily difficult to interpret. It reads: uses for the purpose of killing or taking any such wild mammal any such article as aforesaid, whether or not of such a nature and so placed as aforesaid".

This seems to bring into the range of forbidden methods of catching not only mammals in Schedule 6, but also wild mammals in general, something that is roughly like a kind of trap, but not precisely the type of trap which is specified in the previous paragraph. Therefore, I feel that clarification is necessary.

This is particularly so because mammalogists, for purposes of education and for purposes of research, make use very widely of a small type of trap, known as the Longworth trap, which is a highly successful design of live trap for small mammals. The makers of this trap inform me that they sell about 1,500 a year within this country and there is also a considerable export market. The Longworth trap is a very important and widely used tool for individuals conducting their research, for schools in teaching, for universities, for adult education centres, including field study centres, and so on. Naturalists' trusts make use of it in survey work, in class exercises, for research and so on, wherever it is desired to catch small mammals, to do no harm to them, to mark them in some way, quite often, or to inspect them, to examine them and subsequently to release them.

So this is not a trap which causes injury to the animal, which is released alive. The only possible injury that it can cause is to shrews, which are in Schedule 6. But any man operating a Longworth trap, with the foresight to place in that trap a little piece of dog meat or something like that which can be eaten by the shrews, will not kill such shrews as enter into this trap. The types of mammal that enter this trap are small field mice, wood mice, voles and so on. As I say, it is extremely important and each year some hundreds of operators are using the Longworth trap.

It it is the case that this rather incomprehensible wording in subsection (2)(b) would prevent the free use of a catch-alive trap, when it was not designed or intended to kill the wild mammal caught, whether protected or unprotected, then there is concern and I shall press my amendment, or some similar amendment that would take care of it. If it is intended by these words to ban the use of live traps, then it must be realised that every year there will be several hundreds of individuals, and certainly dozens of institutions and those running field courses, each of which would probably have a dozen or more members who would use these traps. So several hundred licences would have to be issued each year to people who are making use of this trap for highly desirable, non-damaging, non-injurious purposes. So, if it is not the intention that such a trap should be covered by the Bill, then I would ask for a very clear statement from my noble friend on the Front Bench. I beg to move.

Earl Ferrers

The Bill, as it is drafted, provides that a licence can be given by the Nature Conservancy Council for scientific and educational purposes. This is the course which we favour. It may seem unnecessarily bureaucratic, but the restriction on methods of killing certain mammals—and the shrew is one of them—arises from the Council of Europe Convention. it is also a requirement of the convention that every two years the contracting parties to it report to the standing committee on the exceptions which they have made. The record of licences which are issued, and which permit certain methods to be employed against certain species, will, in fact, provide the basis for that report. But I can assure my noble friend that no obstacles will be placed in the way of licences which permit the use of traps such as the Longworth trap for scientific and educational purposes. I hope that, with that assurance, my noble friend will be satisfied and will not press his amendment.

The Earl of Cranbrook

That does not really answer my question. I heard my noble friend very clearly refer to the killing of animals and I want to stress again that I am not discussing, a trap which kills. I am discussing a trap which keeps alive. If the Nature Conservancy Council wishes to be burdened with this excessively large number of licensing requests, then that must be so. I am perfectly certain that schools, universities, adult education centres and so on throughout the country, which are making use of that Longworth trap, will find this a bureaucratic nuisance. But if my noble friend is able to consult with his advisers, and to stress the fact that I am not talking about the killing of any Schedule 6 mammals or, in fact, about the killing of any mammals at all—I am talking about the kind of trap which catches them and keeps them alive—I think he will perhaps be able to reassure me that this peculiar phraseology in paragraph (b) is not necessary under the convention.

Earl Ferrers

I think that my noble friend may be under a misapprehension, which is probably due to me. The fact is that there will not be any restrictions upon the use of the type of trap to which he referred, the Longworth trap, though in some cases some traps incidentally happen to kill shrews, although they may be used for the trapping of other animals. The fact that I used the word "killing" in the explanation of the reasons for having this in the Bill may possibly have misled my noble friend. However, I do not think that there is anything between us.

The Earl of Cranbrook

I am greatly reassured to hear from my noble friend that there is no restriction on the Longworth trap. That fact now being on the record, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn

[Amendments Nos. 162 and 162A not moved.]

The Deputy Chairman of Committees (Lord Nugent of Guildford)

I should state that if the next amendment, Amendment No. 163, is agreed to, I cannot call Amendment No. 164.

Lord Melchett had given notice of his intention to move Amendment No. 163: Page 12, leave out lines 28 to 31.

The noble Lord said: We probably dealt with the points concerned in this amendment while discussing an earlier one. Therefore, it might be quickest if I did not move it.

8.11 p.m.

Lord Swansea moved Amendment No. 164: Page 12, line 29, leave out ("or semi-automatic")

The noble Lord said: Your Lordships will remember that last week, when we debated Clause 5 which contains a subsection identical to this, I moved an amendment to leave out the whole of the line. Clause 11 gives us a second chance to discuss the question of semi-automatic or self-loading weapons before we get to the Report stage.

So far as automatic weapons are concerned, I have no particular quarrel with the Government if they wish to retain in the Bill the prohibition on their use. I still think that it is superfluous, but on the belt-and-braces principle it probably does no harm to leave it in, provided that we understand quite clearly, as I said last week on Clause 5, what is meant by the term "automatic". Noble Lords may have noticed that I have put down a fresh amendment to the interpretation clause to cover that point.

So far as the present clause is concerned, originally I had tabled an identical amendment to that in respect to Clause 5. Since then I have withdrawn it and substituted the present amendment, simply to leave out the words "semi-automatic". It is quite illogical that this Bill should seek to prohibit semi-automatic or self-loading weapons when nothing is said about repeating weapons, by which I mean those with a magazine which are reloaded by the manual operation of some part of the mechanism. If these are acceptable and not to be prohibited, as it appears at present, what is the objection to the use of semi-automatic weapons?

The Government will have to produce a better reason for this provision than to say that they are bound by an EEC directive. My understanding is that these so-called directives are not binding and that some member countries have not accepted this provision in their own territories. If there is evidence in existence that semi-automatic weapons are being misused to a considerable extent, that could be a reason for prohibiting them, but so far the Government have not produced any evidence of that kind. In the absence of such evidence, it is surely absurd to ban something on the grounds that it might be misused. It is sheer supposition. My noble friend Lord Ferrers said a short time ago in connection with an earlier amendment that he was not aware of the use of animals as decoys, so he saw no need for an amendment to be moved to prohibit their use. If there is no evidence of the misuse of semi-automatic weapons, then there should be no grounds for prohibiting their use.

Shotguns of this class are very useful for the control of certain pests—for example, pigeons. At certain times of the year pigeons come in enormous flocks to feed on the crops or to roost in the woods. When one has to keep a pest like that under control, surely one needs the full resources of whatever weapons one may have available. In that connection, there can surely be no harm in allowing the unrestricted use of semi-automatic or self-loading shotguns. One could make out a case for restricting the magazine capacity for use against game. However, I suggest that for the control of pests—in other words, the birds included in Part II of Schedule 2—there should be no restriction on the use of these weapons.

This clause, like Clause 5, draws no distinction between shotguns and rifles or between rifles of different classes. One class of rifle which should certainly be exempted from the provisions of this clause is the .22 semi-automatic rifle, which is a very useful weapon for the control of such pests as rabbits, pigeons and rooks. There are very many in use throughout the country. It would be quite absurd and impracticable to prohibit their use or to say that the magazine capacity should be restricted. I beg to move.

Earl Ferrers

This amendment seeks to remove the use of semi-automatic weapons from the methods which may not be employed against Schedule 6 mammals unless a licence has been granted. The Government are required by the terms of Article 8 of the Berne Convention to prohibit particular indiscriminate and non-selective means of killing some wild animals which are in need of protection. Semiautomatic weapons are included in the list of indiscriminate and non-selective methods of killing. A similar provision appears in the European Community directive on the conservation of wild birds. To omit these weapons from the provisions of the Bill would be contrary to the obligations which the Government have undertaken, so I hope that my noble friend will see the reason why we find it difficult to accept his amendment. I would point out to my noble friend that it is not a ban on semi-automatic weapons in toto. It is merely a ban on semi-automatic weapons against those mammals which are listed in Schedule 6.

I understand from what my noble friend has said that he would like to know what the Government consider to be automatic and semi-automatic weapons. An automatic weapon is one which has a mechanism for loading, firing and ejecting until the ammunition is exhausted or pressure on the trigger is released. A semi-automatic weapon is one which has some particular feature of an automatic. In practice, I am advised that it must mean that the weapon ejects the spent cartridges and loads itself automatically, but that a separate pressure on the trigger is required for each missile to be discharged. These weapons, I am advised, are also known as self-loading firearms.

With that explanation, I hope my noble friend will be satisfied and will feel obliged and content to withdraw his amendment.

Lord Swansea

I am grateful to my noble friend for his remarks. I agree entirely with him so far as the definitions of automatic and semi-automatic weapons are concerned. I went into that very point in some detail on Clause 5. I am also aware that the scope of this subsection of Clause 11 is not so broad as that of Clause 5, but even so I thought it a suitable opportunity to make a fresh approach to the question of semi-automatic weapons in the hope of saving a little time and having a second bite at it before the Report stage. I think that I shall have to pursue again the question of the .22 semi-automatic rifle at a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.20 p.m.

Earl Ferrers moved Amendment No. 165: Page 12, line 32, at end insert ("other")

The noble Earl said: This is in the nature of a drafting amendment, recognising that a mirror itself is a dazzling device and that it is necessary therefore to refer to "other" dazzling devices. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 165A to 168 not moved.]

Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 169: Page 12, line 38, after ("vehicle") insert ("or a pack of hounds")

The noble Lord said: I think I sense the mood of the Committee, which would be to press on with more practical business. Apart from that I am lacking a certain amount of support on these Benches. I think I had better defer the abolition of foxhunting until another day. I doubt whether I could persuade your Lordships to a favourable decision on this amendment in less than about 45 minutes; therefore I shall not move this amendment.

Lord Craigton moved Amendment No. 170: Page 12, line 38, leave out ("immediate")

The noble Lord said: When a gang of poachers are rounding up a herd of deer prior to slaughter, can every poacher's car be said to be in "immediate" pursuit? I think the word "immediate" might prove to be a technical loophole in this excellent provision. I beg to move.

Earl Ferrers

The intention of the subsection as drafted is to prevent vehicles being used as gun platforms for hunting Schedule 6 creatures. It is not our intention, as it would seem to be that of the amendment, to prevent the use of vehicles like Land Rovers to approach areas where Schedule 6 creatures may be causing damage and where it is necessary to control them. Indeed, if my noble friend's amendment were to be accepted we should be in the curious position of finding that we should be unable to approach the particular site by Land Rover, for instance, but we could get to the site by shanks' pony, by a stage-coach or by a camel. Therefore, I think it would be inappropriate to accept my noble friend's amendment.

Lord Craigton

I am quite happy about the camel! I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 171 to 173 not moved.]

Lord Craigton moved Amendment No. 174:

Page 12, line 40, at end insert ("; or (f) uses any method other than structural exclusion to exclude from a dwelling-house wild mammals included in Schedule 6.").

The noble Lord said: As I said briefly when speaking to my amendment No. 139 about bats, I envisaged getting rid of a bat colony in a house at the right time and at the least dangerous time—not the breeding season, June to August—and to get rid of this colony with the help of the Nature Conservancy Council. It must be done in the right way, not by the use of gas or chemicals or other maiming or killing devices. The householder should have materials ready to fill in the entrance and exit apertures and do it early in the evening when the bats are away feeding. The bats will not like it but with patience and perseverance they will be forced to join other colonies and to find new places to roost. This amendment would also prevent the unnecessary destruction of other delightful visitors from Schedule 6, dormice, red squirrels, shrews and even the polecat, all of which have been known to enter occupied buildings.

I do not expect a reply to this because I know from what my noble friend on the Front Bench has said that he is going to consider the whole question of bats, but I think it is very important (and so do people who are keen on bats) that some effort should be made to use what is called the mechanical exclusion of certain animals, especially bats, from dwelling-houses. I beg to move

Earl Ferrers

I am grateful to my noble friend for explaining to me exactly what this amendment does, because I am bound to say that when the amendment was tabled I was not clear as to exactly what effect it would have. I realise that the problem of bats is one to which my noble friend has given a great deal of attention, and of course I will consider this along with the other amendments which have been tabled about bats.

Lord Craigton

That is all I can ask for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.28 p.m.

Lord Houghton of Sowerby moved Amendment No. 175: Page 12, line 41, at end insert ("and be liable to a special penalty")

The noble Lord said: The point here is that the penalty applicable in this clause is anomalous in comparison with that applicable in relation to birds under Clause 5. At present, subject to the provisions of the Act, if any person uses a prohibited method of killing any bird he would be guilty of an offence liable to a special penalty, which is a fine up to £500 or imprisonment for up to three months, or both. In the case of a mammal, however, a similar offence would be liable to a maximum penalty of £500. Therefore, I propose to add the words "and be liable to a special penalty" to bring the penalty for wrongdoing to animals—that is, using an outlawed weapon to kill—into line with the penalty for a like offence against birds. I beg to move.

Earl Ferrers

This seems to be an entirely reasonable amendment, but perhaps I could be permitted to consider it further before accepting it.

Lord Houghton of Sowerby

I am very grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Craigton moved Amendment No. 176: Page 12, line 43, after ("obligation") insert ("or otherwise")

The noble Lord said: After the decoy animals, which were in favour of birds and unfair to animals, and after the point made by the noble Lord, Lord Houghton, this is yet another one. Why is the Secretary of State limited in his powers of amendment about mammals to an international obligation? In relation to birds referred to in Clause 5(2), the Secretary of State has the powers that I wish to see here, similar to the one we are discussing on mammals. I wonder why he is limited to an international obligation. That is why I put in the words "or otherwise": in order to tie it up with the situation in regard to birds. I beg to move

Earl Ferrers

The clause as drafted is designed so that the Secretary of State may give speedy effect to any international agreements which the Government have concluded, relating to the prohibition of certain methods of the killing or taking of animals. The amendment which my noble friend has suggested would give the Secretary of State a much wider power and it is conceivable in certain circumstances that the power might be used to vary the methods of killing for other than conservation reasons. I should have thought it would be bad for the Secretary of State to have more power than Parliament specifically permits him. I would hope my noble friend would agree not to press this amendment.

Lord Craigton

I certainly would not press it, but I would ask my noble friend at a later date to have a look at the situation of birds, because as I read the Bill he has these powers in relation to birds and not in relation to mammals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 177 to 180 not moved.]

Lord Houghton of Sowerby moved Amendment No. 181: Page 13, line 3, leave out ("that subsection") and insert ("those subsections")

The noble Lord said: This is a drafting amendment. I beg to move.

Lord Melchett

Accept.

Earl Ferrers

I am not so sure. We have run on so quickly that it is not always easy to keep pace with the noble Lord, Lord Houghton. I think this is a question of semantics, but I am advised that the clause as drafted is quite sound. The effect of adding or omitting any method in subsections (1) or (2) would be to vary only one of the subsections and not both, and "that subsection" in line 3 is correct. With this short explanation, which I hope the noble Lord will find acceptable, perhaps he will consider withdrawing the amendment. He moved it very hastily. He did not explain what he was trying to do, but I think what he is trying to do is not correct.

Lord Houghton of Sowerby

If the noble Earl is satisfied, so am I, on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Onslow had given notice of his intention to move Amendment No. 182:

Page 13, line 3, at end insert— ("Provided that no such order adding any method of killing or taking any wild mammal shall be made under this subsection unless the Secretary of State is satisfied that the order is necessary for the purpose of conservation.")

The noble Earl said: I think this point was very adequately covered in Amendment No. 61, and we got a totally satisfactory answer from the noble Earl, Lord Avon. I do not propose to move the amendment.

[Amendment No. 182 not moved.]

[Amendment No. 183 not moved.]

8.35 p.m.

Lord Gibson-Watt moved Amendment No. 184:

Page 13, line 11, at end insert— ("(5) An order made under this section shall not have effect unless or until approved by a resolution of each House of Parliament.").

The noble Lord said: This is a similar amendment to one we have had in the past. Some of my noble friends and I do not really think that in this clause—during consideration of which we have had one quite important Division; there is certainly feeling about the matter we divided on—this should be a matter for an order made by the Minister. We think it should be for an affirmative order, and therefore for debate in both Houses of Parliament, either by the present Secretary of State or a future Secretary of State.

Lord Melchett

We discussed a similar amendment, No. 66, at much the same time as we discussed a similar amendment at No. 182, namely No. 61. I said then, and I think what I said found some favour with noble Lords opposite and possibly even with the noble Earl, Lord Avon, that of the two alternative approaches—and I see these as two alternative approaches to the problem—we much prefer the approach being adopted by the noble Earl, Lord Onslow, and the noble Lord, Lord Mowbray, subject to the Government's consideration of the exact terms of the qualification, because, as Lord Avon said, the wording needed looking at. I would hope we would do the same here as we did previously; in other words, leave this to be looked at by the Government, and hopefully be able to adopt the procedure which the noble Earl, Lord Onslow, and the noble Lord, Lord Mowbray, had their eye on.

Lord Gibson-Watt

May I just say that this is slightly different, in so far as under subsection (3) it might be for the purpose of complying with an international obligation, and we should not like this to be slipped through without proper debate. I think there is a great deal of suspicion about the European decisions on this matter. We think that something of this importance should be properly debated in both Houses.

Earl Ferrers

I hope there will not be any feeling of suspicion. The Bill provides that any order amending the lists of protected creatures or restricted methods of killing shall be made by statutory instrument. It is not considered that the content of any of the orders concerned will be of such importance as to justify a parliamentary debate. I would only say to my noble friend Lord Gibson-Watt that it is relevant to point out that the absence of any parliamentary procedure in relation to these sort of orders accords with the present provision under Section 13(1) of the Protection of Birds Act 1954. So far as I am aware, no one has previously suggested that there was any need for a more elaborate procedure. I hope that on reflection my noble friend will agree that that is reasonable.

Lord Gibson-Watt

On reflection, I shall be happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 11, as amended, shall stand part of the Bill?

The Duke of Atholl

I should like very briefly to raise one point. Would the Front Bench consider making sub-aqua guns, harpoons and such like weapons illegal for the killing of animals? It seems to me that they can do a lot of harm. They are getting more and more common in many Scottish rivers, and it seems to me an undesirable trend. I apologise that I have not put down an amendment to this effect, but I think it would be desirable to include such weapons in this clause.

Lord Craigton

I would support that.

Lord Donaldson of Kingsbridge

We support it.

Earl Ferrers

My noble friend asks whether I will consider it. The answer is, yes.

The Earl of Onslow

Before we suddenly say, "Will everybody accept sub-aqua guns being stopped?", I think the matter should be given considerably more consideration than just to say "Heigh ho, let us stop aqua-gun shooting". That is basically what my noble friend has said.

Earl Ferrers

I said it would be considered.

The Earl of Onslow

All right, I withdraw the words "heigh ho". We should be much more careful when we launch into considerations of such things as this. Aqua-lung fishing is a very great sport.

Lord Dulverton

It may be a very great sport, but it is also a very fine weapon in the hands of the salmon poacher in Scottish rivers. I would suggest that in considering the point raised by my noble friend the Duke of Atholl it might be a good thing to consider banning these underwater weapons in fresh waters.

Lord Donaldson of Kingsbridge

As well.

Earl Ferrers

I will consider that as well.

Lord Gibson-Watt

May I ask my noble friend one quick question? In Schedule 6, which is really what we have been discussing with this clause, we come to the question of the polecat. The polecat is a rare beast in most parts of Britain, but it certainly is not in mid-Wales. It is extremely prolific and we get population explosions from time to time. If we have to deal with this when it happens, would it be covered by the possibility of applying for a licence?

Earl Ferrers

If my noble friend is disturbed by polecats then the right thing to do is to apply for a licence, and if he has a licence he will be permitted to take them.

Clause 11, as amended, agreed to.

8.39 p.m.

Lord Melchett

moved Amendment No. 185:

After Clause 11, insert the following new clause:

("Amendment of Badgers Act 1973

The Badgers Act 1973 is amended as follows:—

1. (a) in section 1(2)(a) leave out "recently killed "and insert" dead";
2. (b) in section 1(2)(b) leave out "freshly skinned";
3. (c) in section 1(2) leave out "he shall, subject to subsection (3) below, be guilty of an offence" and insert "which is not shown to have been killed or taken otherwise than in contravention of the provisions of this Act, he shall be guilty of an offence;
4. (d) in section 2, the following paragraph shall be substituted for paragraph (c)—

(c) save as may be authorised by licence granted under section 9 of this Act, dig for any badger, or;

1. (e) section 6 shall be omitted;
2. (f) section 7 shall be omitted;
3. (g) section 8(2)(c) shall be omitted save for the final word "or";
4. (h) in section 9, there shall be inserted after paragraph 9(1)(d) the following paragraph:—

(e) for the purpose of preventing serious damage to land, crops, poultry or any other form of property to kill or take badgers within an area specified in the licence by any means so specified, provided that the appropriate authority may only issue such a licence if satisfied that all reasonable means of preventing such damage by methods that are not likely to injure or kill any badger have been thoroughly tried by the person applying for the licence and have failed to prevent such damage."; (i) in section 9, there shall be inserted after paragraph 9(2)(b) the following paragraph:— (c) in the case of a licence under paragraph (e) of that subsection, the Secretary of State for the Environment after taking advice from the Nature Conservancy Council or, in Scotland, the Secretary of State after taking advice from the Nature Conservancy Council";

1. (j) in section 10(1)(c) leave out "badger whether alive or dead, any weapon or article capable of being used to kill or take badgers, which may be in that person's possession" and insert "anything which may be evidence of the commission of the offence or may be liable to be forfeited under subsection (3)";
2. (k) in section 10(2)(a) leave out ("£20") and insert ("£500");
3. (l) in section 10(2)(b) leave out ("£100") and insert ("£500");
4. (m) in section 11, leave out the definitions of" area of special protection" "authorised person" and "local authority";
5. (n) in section 11 at end insert" "sale" includes hire, barter and exchange";").

The noble Lord said: I beg to move Amendment No. 185. I am afraid this will take a little longer than some of the amendments we have just been dealing with because it is a fairly substantial chunk. But I think it is important—

The Earl of Caithness

May I interrupt the noble Lord? This is quite an important point. I should like to ask the Government whether they consider this amendment, the next amendment, No. 186, relating to the Conservation of Seals Act, and Amendment No. 188, relating to the Deer Act, as appropriate amendments to this Bill? If the existing legislation specifically on deer, badgers and seals is inadequate, surely the advisers to the Government or to noble Lords would have recommended that separate Bills be introduced to deal with the appropriate problem? Perhaps the Government spokesman could comment on this point before we continue?

Lord Melchett

If the Committee agree, I think that I might be allowed to move my amendment and then the noble Earl and anybody else who wants to do so may comment on whether they think it is a good amendment. As I understand it, once it has been accepted by the House authorities as coming within the required rules of your Lordships' House, I am entitled to get on my feet and move it as quickly as I can.

My reason for moving this amendment was that I took my inspiration from statements by Government Ministers. First, during the Second Reading of this Bill the noble Earl, Lord Avon, in response to something that I said in my Second Reading speech pointed out, at column 1090 of the Official Report for 16th December: The badger is already afforded a measure of protection by the Badgers Act 1973". He went on to spell out what that protection was and then said: In this Bill we are proposing to increase the degree of protection which a badger might enjoy by including it in the schedule of mammals against which a range of methods described in Clause 11 should not be employed, except under licence". The noble Earl went on very kindly to say, at column 1091, that if new proposals were made at this stage—the Committee stage of the Bill: obviously we shall consider them carefully at the Committee stage". His honourable friend the Minister, Mr. Monro, in a debate in another place on 10th November last year, at column 165, went a little further than that and said: I feel that it is a sad fact that the Badgers Act 1973 has not provided the protection for which many of us hoped. We all know that an unauthorised person may not kill a badger. In an area of special protection an authorised person may kill only to prevent serious damage, which must be obvious and easily proved". The Minister went on: Yet, we know that badgers are being killed without those qualifications being satisfied". It seemed to me at any rate, taking my cue from statements by the Government which I personally very much welcomed, that it would be useful for us to look at some amendments to the Badgers Act when discussing protection for the badger which is already, as the noble Earl, Lord Avon, pointed out, covered by a particular part of the Bill. I thought that it would be useful in particular because the noble Earl, Lord Avon, said that aspects of animal welfare were covered in other legislation—for instance, the Badgers Act, and he said that at Second Reading as well. It seemed to me that it would not be possible to provide the sort of protection which I, and I think the Minister in another place, considered was now necessary for the badger, without actually amending the Badgers Act. The substantive parts of this Bill were not the right means to employ. That is why again I have gone for an amendment to the Badgers Act itself.

Briefly, to support the case for further protection, which I think is substantively accepted by the Government and I hope will be accepted by many noble Lords, I point out that there has, as noble Lords will know, been a problem with badgers in the South-West of England where they have been gassed by the Ministry of Agriculture because it is felt that they are transmitting a disease to cattle. Nothing that I want to do in my amendment would affect that one jot. The Government have a report from the noble Lord, Lord Zuckerman, suggesting that these procedures should continue. It does not seem to me that this Bill is the place to debate that or to try and alter those procedures. Those procedures are carried out under licence and that would, as far as my amendment is concerned, continue completely unaltered and for my part I would not wish to raise that issue in this debate at all.

What I do wish to raise is something which many of us were worried about when provisions to allow the gassing of badgers were originally introduced. I held a position in the Government when those amendments were made to the Bill and went through your Lordships' House. What worried me and a number of other noble Lords at that time was that the publicity which was generated by the controversy over whether badgers should be gassed in the South-West or not would lead to the badgers being given a very bad image in the eyes particularly of the farming community in the rest of the country, and an image which was completely unjustified. Badgers were not a threat to cattle outside the limited areas in the South-West where the gassing is being carried out by the Ministry of Agriculture. Yet undoubtedly they are now seen as a threat to livestock farming in many areas where that suspicion is simply not justified.

I should like to pay tribute to the consultative panel, which was set up as a result of representations in this House at the time, for the efforts that they have made to disabuse people of this mistaken impression, and also to the Ministry of Agriculture whose notes and press releases I, and no doubt other farmers, regularly receive which have made the case that badgers are not a threat and a danger. Nevertheless, I am afraid that this has not got through to the extent it should have done and I think that the Minister in another place recognised that when he said that the protection under the Badgers Act simply was not working as it should do.

In recent years two special protection areas have been set up. The case which was made for the first one of those in West Yorkshire is, I think, useful to quote very briefly because it underlines the lack of effectiveness of control of these problems in the Badgers Act as it stands. The Mammal Society Badger Recorder—whose comments on the situation in West Yorkshire were what led to the area of special protection being declared—in discussing the reasons for the decline in badgers, concluded: It is almost impossible to stop this persecution"— that is the persecution of badgers— under the present law and the badgers in this county cannot survive if this rate of killing continues". In a paper last year to the Nature Conservancy Council, Mrs. Ratcliffe commented: During the years of observation in the Wirral since the passing of the Badgers Act, I have taken a special notice of destruction by authorised persons and I consider this to be the reason for at least 25 per cent. of badger setts destroyed". That is evidence which, I think I am right in saying, is in the process of leading to a second special protection area being drawn up.

To take it as briefly as I can, my amendments have the intention at least—if they have been drafted anything like reasonably—of first of all bringing certain provisions of the Baders Act, which I do not intend to go into at great length, up to date. For example, in Clause 1 (2)(a) of the Badgers Act the phrase "recently killed badger" is to be found. We discovered with the experience of the Protection of Birds Act, that the phrase "recently killed" is such an enormous loophole and so impossible to define in law that it is unworkable. The Wildlife and Countryside Bill corrects that for birds, and I hope that we shall be able to do the same for badgers. The same applies to the amendments to Clause 1(2)(b) which states "freshly skinned badger". The substantive amendments to the Badgers Act in this amendment would remove the provision for special protection areas, but would leave badgers protected throughout the country unless somebody had a licence to kill them. That really is the purpose of the amendment.

It seems to me that where a badger is causing damage—if that happens; and in my experience it very rarely, if ever, happens, apart from the problems in the South-West—it would be quite reasonable for the landowner, the farmer or whoever it was, to get a licence to deal with the particular problem. In all other cases the badger would be protected and it would be illegal to kill one. It seems to me that, unless we go for something as simple and straightforward as that, the accelerating destruction of badgers throughout the country, where it is not justified by any disease control procedures, will continue to accelerate. I hope therefore, that my attempt at meeting the problems which the Minister himself recognised in another place, will meet with the Committee's and the Government's approval. I beg to move.

Lord Houghton of Sowerby

I strongly support the amendment moved by my noble friend. He has explained that this amendment seeks to strengthen the Badgers Act rather than get this species mixed up with the rather complicated criteria and conditions of Schedule 5. However, I think that we must treat the badger on its own merits, as it were. The badger has been very badly treated for many, many years and the 1973 Act offered some hope that a good deal of the prejudice and legendary nonsense about the badger would be dispelled and that it would be given a new status among the mammals of Britain. Unfortunately, we no sooner had the Badgers Act on the statute book than this dreadful trouble arose over the suspected infection of cattle by badgers with bovine tuberculosis. To a subsequent Bill that was going through your Lordships' House in 1974 we had to add the provisions to enable the Department of Agriculture not only to control but to undertake destruction of badgers in the infected areas. I remember what a struggle we had at the time to get the Government to accept the advisory committee so that the decision about the destruction of badgers in allegedly infected areas should not be left entirely to the discretion of officials of that department.

This problem, which has recently been investigated by the noble Lord, Lord Zuckerman, has undoubtedly again put back the badger, because many people now regard the badger as being associated with some kind of infection of other animals. In a certain area of the country the badger is being destroyed in large numbers. It is very difficult to get the idea of protection established and held if the badger is being destroyed in large numbers in one part of the country and is supposed to be protected in another.

At the time I found it necessary to circularise farmers in my part of Surrey, to tell them that what was happening over the gassing of badgers in the South-West of England did not apply in their area, that the badgers in their area were not infected and that therefore they must not destroy them. I thought it necessary to do that because of the general feeling that badgers were probably a danger to cattle in areas other than those designated as danger areas.

As to the effectiveness of what is going on, I make no comment. As my noble friend said, we are not dealing with that now. But we cannot help but deal with the consequences—in one respect at any rate-—of what is going on; that is, the prejudice to the position of the badger. If we leave matters as they are, there is a danger that the numbers of badgers may diminish quite rapidly. West Yorkshire has been very badly hit and has been made a special protection area. The situation is very sad in that part of the country.

Therefore, I hope that your Lordships will try to safeguard the badger from the unfavourable consequences of its present position and its unfortunate relationship with the belief that badgers are infecting cattle with bovine tuberculosis. I think that that is owed to this animal. I know it very well. I have badgers within yards of my home and I know a great deal about them; I am probably on better terms with badgers than many noble Lords who also have them on their land. You have to spend a great deal of time on badgers to get on terms with them. It is like dealing with the Tory Party: they hold themselves at a distance. However, they can he encouraged; they can be brought on. They are very nice animals to know when you are in a position to know them.

I have said enough. I hope that this amendment will be favourably received. I hope that the noble Earl will throw off this mood of depression which must have descended upon him from having to resist so many amendments for so long, only promising consideration, never being forthcoming and never offering the hand of friendship across the Table. It is now time—it is nine o'clock—to revive our spirits and to feel that we have accomplished something worthwhile in being here today.

Lord Gibson-Watt

I have just as much sympathy with the noble Lord, Lord Houghton, as I have with Tommy Brock, but I very much question whether tonight we should be debating the Badgers Act within this Bill. If we debate the Badgers Act, a great many other Acts are referred to in the Bill which we could also debate. Perhaps it would be as well if my noble friend on the Front Bench ruled on this.

Lord Craigton

I agree with every word of the noble Lord, Lord Houghton, except the dirty cracks about the Tory Party. The incidence of tuberculosis and the Zuckerman Report have caused some considerable confusion. Advantage is being taken of it. I heartily support the amendment of the noble Lord, Lord Melchett.

The Earl of Onslow

Funnily enough, should we not be arguing for the repeal of the Badgers Act completely? If not, why do we not have a Great Crested Newt Act, a Sandbowl Snail Act or a Dolphin, Bottlenosed Act? Surely in this Bill we are providing protection and conservation—perhaps conservation only—of species. Should one particular species be singled out for special protection? I would suggest to your Lordships that otters are much rarer than badgers. Of course one wants to protect badgers. Of course one does not want them indiscriminately killed or slaughtered. Of course badger-digging with tongs was a very unattractive performance. I agree with all of that. But surely is it not better to regard all animals as coming under this one Act, properly under their own schedules, rather than mucking about with one particular animal in this particular way?

Lord Melchett

I should like to respond to that and, to some extent, to the suggestion that it is not right in a Bill, which is already re-enacting and amending almost every piece of wildlife legislation that we have in this country, that we should not do the same for one more Act. If I may say so, it seems to be a strange suggestion. On the reason for retaining the Badgers Act, as I say, I have great sympathy with what the noble Earl, Lord Onslow, said: it would be much simpler if we simply repealed it and had animal conservation issues covered by this Bill. The problem with that is twofold.

First, to some extent the Badgers Act was an animal welfare Act, and, for example, it includes the banning of the use of badger tongs, which the noble Earl mentioned. It would be necessary to include those particular provisions, presumably in Clause 11, were we to abolish the Badgers Act. The second argument is, to some extent, the Government's argument. As I understand it, they have said that they are quite prepared to see the birds part of this Bill as a conservation and protection measure. In fact, they cannot avoid that because they are re-enacting the Protection of Birds Acts, which are a mixture of conservation and protection. That is why all birds are protected except those of the pest species, which are excluded.

We argued on an earlier amendment for the same approach to be adopted for mammals, reptiles and amphibians. The Government have said rather mildly that they will look at some of the points we raised, but I think that it would be unrealistic to hold out any great hope that they will accept that amendment in toto. As I understand it, they are resisting it mainly on the basis that the part of the Bill dealing with mammals should be a conservation measure only. If that is the Government's line, the only way in which we can provide additional protection for badgers of the sort that we, on this side of the Committee, think is needed is by amending the Badgers Act.

Therefore, we have been driven to these amendments by the Government's attitude. I make no great complaint about that. I do not think that that is unreasonable, but, by the same token, I hope that noble Lords will not think that it is unreasonable for us to have adopted this particular tactic of amending the Badgers Act.

9.1 p.m.

Earl Ferrers

I think that it was my noble friend Lord Gibson-Watt who asked me to rule on whether or not this was permitted. Far be it from me to rule on what your Lordships are permitted to do, but if your Lordships put down an amendment about the Badgers Act, then your Lordships are entitled to do so and the noble Lord, Lord Melchett, was quite right to move it. I shall do my best to respond to it. I was grateful to the noble Lord for his effort at constructiveness in this amendment. Indeed, I was grateful to him for saying that he did not want to draw on the controversy which surrounded the gassing of badgers. This is important.

I wondered whether the noble Lord, Lord Houghton was going to test me a little further than the noble Lord, Lord Melchett, in supporting the action which my right honourable friend the Minister of Agriculture has taken, because the noble Lord, Lord Houghton, said that badgers are being destroyed in large numbers. I would only say on that subject that where badgers are gassed in the South-West of England it is only where it is shown without, I would say, doubt that there is a connection between the tuberculosis in badgers and outbreaks of tuberculosis in cattle. That is the reason for it.

The fact that the noble Lord, Lord Houghton, says that this gassing of badgers gives the impression to other people that badgers are therefore bad things, may be an unfortunate result of an unfortunate state of affairs in the South-West of England. The noble Lord, Lord Houghton, said that he felt that I must be very depressed, and why could I not take the hand of friendship and accept the amendment. I am not at all depressed by the debates. I may be a little confused by them. When I accepted an amendment earlier on about red squirrels, that acceptance of the amendment caused more of a fuss than the non-acceptance of many others.

I would go along with both noble Lords in the fact that they are conscious, as we are, of the public concern that has been expressed recently about the badger and its status. The Nature Conservancy Council advise that its status as a British mammal is not endangered, and there is no scientific case therefore for adding the badger to Schedule 5; and, of course, that is not the effect of Lord Melchett's amendment. The effect generally is to afford greater protection to the badger to the extent that authorised people would not be able to take or kill a badger on their own land without first taking the precaution of obtaining a licence.

There is already a provision in the Badgers Act to restrict freedom of action on the part of the owner-occupier of land to take or to kill badgers on his land, if his land forms part of an area of special protection designated by the Secretary of State. One such area has been designated, and that is in West Yorkshire. Another is under consideration in the Wirral, and the noble Lord, Lord Melchett, referred to it. The designation of an area of special protection provides a defence to an authorised person who kills or takes the badger, to the extent that he has to show to a court before whom he is brought that the action taken was necessary for the purposes of preventing serious damage to land, crops, poultry or any other form of property, or for the purpose of preventing the spread of disease.

The amendment goes further by requiring the prior issue of a licence before such action is taken. This may be regarded as an unjustifiable intrusion upon an authorised person's freedom to do what he wants on his own land, but of course there are occasions when such freedom ought to be curtailed in the national interest, and I have some sympathy with the intention of this amendment. The Nature Conservancy Council has advised that they consider the general protection afforded to badgers is not satisfactory. They have highlighted as the main weakness of the Badgers Act 1973 the unregulated activities of authorised persons who are in general exempt from the provisions of the Act.

I am not necessarily entirely happy with the way in which the increased protection for the badger is sought. For example, we would not wish to increase the penalty for an offence against Section 5, which is the offence of failing to provide one's name and address to an authorised person, to £500. Neither do we necessarily believe that the licensing provisions should become the responsibility of my right honourable friend the Secretary of State for the Environment, who will be required to act upon the advice of the Nature Conservancy Council.

I say that, but I wish to emphasise that in no way are we implacably opposed to the amendment. Far from it. As the noble Lord, Lord Melchett, said, my right honourable friend the Parliamentary Secretary of State for the Environment, when he spoke in another place before Christmas, confessed to an affection for the badger, and thought that it was a sad fact that the Badgers Act 1973 had not provided the protection which many in both Houses had sought.

We would like to consider further what might be done outside the control areas in the South-West of England which are undertaken by the Ministry of Agriculture, where regrettably action has had to be taken against the badger to prevent bovine tuberculosis. I should like to consider what steps may be taken to increase yet further the protection of the badger. On the basis of this understanding, I would hope that the noble Lord, Lord Melchett, might withdraw his amendment because at the moment in its present form it is not wholly acceptable.

9.5 p.m.

Lord Kilbracken

Before my noble friend replies, may I ask him a question? I support him very much on this proposal, but I wish he had gone on to talk about paragraph (h) of the proposed new clause. In this, persons may be licensed to take badgers for the purpose of preventing serious damage to land, crops, poultry or any other form of property… If we are concerned with the public image of the badger—and I personally love badgers and believe they do not do any harm at all, except that they are unfortunately infected with T.B.—surely it is not doing any good to talk about badgers doing serious damage?

Lord Melchett

I take my noble friend's point. That paragraph was put in in an effort to make the amendment as acceptable as possible. I was trying not to be unreasonable, and it seemed to me that the fact that somebody would have to go and ask for a licence would be sufficient protection for the badger. In other words, they would have to show that there was serious damage occurring to one of these things. It seemed to me that without that sort of paragraph there would be—I do not know about justifiable—some opposition to the changes I was suggesting if the badger had total protection, and there was no provision for killing a badger that was causing some damage. I agree with my noble friend: in my experience they do not cause any damage of this sort, and that was the conclusion of the working party which looked at this matter and which had on it the representations of the NFU, the CLA, the British Field Sports Society, and so on. There is a fair degree of unanimity on this, but it does not seem to me that that paragraph does any harm.

I was delighted with what the noble Earl had to say, and I am grateful for it. I accept that what I have in my amendment is not right in a number of respects. It slightly pre-empts discussions we are going to have on the Bill, particularly about penalties and about who would be issuing licences, and so on. Clearly, in its present form it would not be acceptable, but I was very grateful to the noble Earl for what he said and was encouraged by it. I beg leave to withdraw the amendment.

The Earl of Caithness

I apologise if earlier I interrupted the noble Lord, Lord Melchett, at the wrong moment. These amendments appear to be separate, but as my noble friend has given an assurance to consider the matters that have been raised, I hope he will consider the provision in paragraph (h) because if a badger damages property by, for example, getting into a battery henhouse, one wants to take immediate action and the process of obtaining a licence could be too slow. Perhaps my noble friend will consider that when he considers the other aspects that have been raised.

Lord Melchett

The purpose of withdrawing the amendment and allowing the Government to consider it was because that sort of provision clearly needs to be brought into line with Clauses 4 and 10. That was why I had no intention of pressing the amendment at this stage. I should have thought we needed the same sort of provision in all these clauses, and while we may not agree on what that provision should be, once it is settled it should be common throughout the Bill.

The Earl of Caithness

I am grateful to the noble Lord for those remarks.

Lord Melchett

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.10 p.m.

Lord Melchett moved Amendment No. 186:

After Clause 11, insert the following new clause:

("Amendment of Conservation of Seals Act 1970.

.The Conservation of Seals Act 1970 is amended as follows—

1. (a) in section 4(1)(b) leave out ("or boat");
2. (b) in section 4(1) the following paragraph shall be substituted for paragraph (c)—

(c) seize and detain for the purposes of proceedings under this Act any thing which may be evidence of the commission of the offence or may be liable to be forfeited under section 6. (c) after subsection (2) of section 4 insert the following subsection— (3) Except in an emergency, a constable shall consult with the Nature Conservancy Council before disposing of a live seal under subsection (2) and shall take that Council's advice where possible";

1. (d) in section 5(1) leave out ("£50") and insert ("£500");
2. (e) in section 5(2) leave out ("£500") and insert ("£1,000");
3. (f) in section 10(1), leave out paragraph (b).
4. (g) in section 10(1)(c), leave out sub-paragraph (i) and insert—

(i) the prevention of damage to fisheries, provided that the Secretary of State is satisfied that all reasonable means of preventing such damage by methods that are not likely to injure or kill any seal have been thoroughly tried and have failed to prevent such damage;" (h) in section 11(4) insert—

1. (i) "the owner and" after "not less than 28 days notice, to";
2. (ii) "the owner or" after "the Secretary of State shall have regard to any representation that might be made by the ";
3. (iii) "the owner or" after "the expiration of the notice ";

1. (i) in section 11(6) insert "the owner or" after "if required by";
2. (j) in section 15 at end insert ""vehicle" includes aircraft, hovercraft and boat "").

The noble Lord said: Although this is quite a long amendment, I hope I can deal with it briefly; I do not intend to go into all its details, but if any noble Lord is concerned about a particular provision, I shall be happy to explain the thought behind it. This arises as the result of an incident which was brought to my attention by somebody living in Scotland who contacted the World Wildlife Fund. The incident seems to emphasise the extent to which older pieces of legislation which were designed to protect particular species have become very much out of date and thoroughly unused, and, as I explain the incident, the Committee will see what I mean.

In October 1979 a licence was issued under the Conservation of Seals Act 1970 which authorised the taking of 12 live grey seal pups for a zoo in West Germany, and they were to be taken from an island in Scotland. No conditions about the transportation of the animals were specified in the licence and the licence incorrectly specified unmoulted pups, although the pups taken were in fact moulted, being about five weeks old. Two pups died after being kept in the back of a small van overnight and, after discussion with the Government's veterinary adviser, two further pups had to be released immediately into the sea. The remaining eight pups were then taken to a zoo in Germany.

The Government admitted in a number of Written Answers which they were kind enough to provide for me about this incident that the original arrangements made by the licensees were less than adequate. The point of my raising this matter is, first of all, that the licence which was issued was the first, in fact the only, one to be issued in the last five years in Scotland, England or Wales. It demonstrates to me that we passed that legislation some time ago and that old Acts fall into disuse, so it is a good idea to cast an eye over them to see if certain parts of them can, without too much controversy, be brought up to date.

The second point, which will commend itself to noble Lords opposite even if the rest of the amendment does not, is the fact that originally the Government said that the owner of the island had given permission for that to happen. Indeed, they said that in one or two letters they wrote to members of the public who complained about the incident. The owner of the island then contacted me saying that he had not given any such permission. The occupiers, who had the right to farm the island but who, I gather, did not live there—I think they simply grazed some animals there—had been contacted by the relevant department in Scotland and had given permission, but the owner had not.

Part of my amendment would ensure that the Government do what they were good enough to say in a Written Answer they would do in the future—namely, ensure that the owner, as well as the occupier, is always told about the issuing of a licence of this sort. That is the purpose of the amendment to the Conservation of Seals Act 1970, in particular Section 11(4) and (6) of that Act. The other major change (apart from some legal details) which the amendment would make to the Conservation of Seals Act would be to ensure that licences were not issued for zoological purposes, which was the reason why the 12 pups were put in the back of a small Renault van to be taken to West Germany. It seems inappropriate for this country to be issuing licences when so much time and effort had to be involved, with the matter having to be pursued in several Parliamentary Questions over a period of months before we got the facts right.

There is a provision in the Conservation of Seals Act for seals to be taken for educational purposes and in my view it is quite sufficient for any bona fide zoo which has a genuine educational content to be allowed to take seal pups, if that is necessary, for educational purposes. I doubt if it would be necessary because, as noble Lords know, every year a number of seal pups are washed ashore stranded by storms. Where I live in Norfolk that happens on the coast regularly and there is always a great deal of difficulty in finding somebody to look after them. I would not have thought that any reputable zoo in this country would have any difficulty in getting a seal pup through that source if they really wanted one, added to which there is an establishment in Norfolk which has successfully bred a seal in captivity. I hope that with that reasonably brief introduction this amendment will also commend itself to the Government, and I beg to move.

Viscount Ridley

I wonder whether it would be possible for me to take Amendment No. 188A, which stands in my name and in that of the noble Lord, Lord Gibson. I think it would probably be convenient to the Committee to discuss seals and to deal with them before we dodge about among deer, foxes, Scottish primroses and so forth. But I must be in the hands of the Committee if it is felt I should await my turn.

Earl Ferrers

I think that possibly it might be helpful if we were to deal with the amendments of the noble Lord, Lord Melchett, first. I am bound to say that I am doubtful whether any good conservation purpose is to be served by amending the Conservation of Seals Act 1970. The Act represents what we believe is a reasonable balance between the protection and the control provisions for the conservation of common and grey seals in British waters. We think it is fair to claim that on the whole the Act has been successful in conserving large populations of both species, and neither is in risk of decline. It may be appropriate on a later occasion to look at the Act as a whole. Therefore, I would not be in favour of these fairly substantial amendments which the noble Lord seeks to make.

I know the noble Lord has highlighted the problems of owners who have not been notified about entry on to their land. We do not disagree with the idea that owners as well as occupiers of land should be given prior notice of the intended entry. Indeed, the administrative arrangements of the Department of Agriculture and Fisheries for Scotland now provide for prior notice of the intended entry to be given both to the owner and to the occupier of the land, without having it written into the Bill. Therefore, I hope the noble Lord will not seek to push this amendment further.

The Earl of Onslow

Does this not further underline what I was trying to suggest to your Lordships on the last amendment? Here we have two specific species, the seal and the badger, which are protected. They are common animals, as has been said by my noble friend, protected by special Acts of Parliament. Is it not much more sensible to bring the whole of the protection and conservation (call it what you will) under the aegis of one Act of Parliament? I hope that this particular Bill, when it becomes an Act, especially after the time we have spent on it, will be a monument to good legislation on countryside conservation and all these things. Is it not infinitely better to get the two things under tile aegis of one Act? These Acts are bound to clash at some stage. That is the point I wanted to make on the first amendment, and it is now, it seems, underlined even more by the second amendment.

Lord Home of the Hirsel

I hope that the noble Lord, Lord Melchett, having won his case (and I would have been in full support of him) on the badger, is not going to press his luck too far. It is one thing when he talks about a licence to take some seals to a zoo, and the control of that sort of thing, but this is a very controversial subject—the culling of seals, in particular, as he knows, and the impact on salmon fisheries and the rivers—and I should not like to see that whole subject reopened in this Bill. A very careful balance has been kept already, and I think that paragraph (i) on page 10 just might give a different implication. I therefore hope that he will feel it possible to withdraw this amendment.

Lord Melchett

I must say that I did not feel nearly as strongly about this particular amendment as I did about the previous one, and I am myself inclined to agree with what the noble Lord, Lord Home, has suggested to me. I think it is important that the Government should take on board, not only in Scotland but also in England and Wales, the need to tell owners as well as occupiers of land if they are going to issue licences for what are bound to be controversial purposes, even if no pups are stuffed in the back of a small van and die during the night. I hope it will not be just in Scotland, but also in England and Wales, that that point is taken on board, because the unfortunate owner is liable, as this one was, to be heavily criticised in the local press for allowing this to happen when he did not know until after it had been done, which seems to me a bit unfair.

Having said that, I must say that I agree with what the noble Lord, Lord Home, has said, that there were not nearly so many substantive points in this amendment. I hope that one day we shall have the chance to bring this Act up to date, but I am inclined to think that this Bill is not the place to do it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 187: After Clause 11, insert the following new clause:

("Prohibition of snaring foxes

.—(1) Any person who intentionally sets a snare to trap a fox shall be guilty of an offence.

(2) Subsection 15(2) below shall apply to this section.").

The noble Lord said: The debate on the snare which took place earlier seemed to be mostly about the fox. In the present state of prejudice on the Benches opposite against the fox, I will give noble Lords an opportunity to get over it and return to this matter on a later occasion, so I will not move this amendment.

[Amendment No. 187 not moved.]

The Deputy Chairman of Committees (Earl Cathcart)

Amendment No. 188. In calling this amendment I should draw attention to a misprint on the Marshalled List. Paragraphs IF and 1G at tile top of page 13 should appear immediately after paragraph 1E about one-third of the way down page 12.

9.21 p.m.

Lord Northfield moved Amendment No. 188:

After Clause 11, insert the following new clause:

("Amendment of Deer Act 1963

. The Deer Act 1963 is amended as follows:—

(a) in section 3 the following subsections shall be inserted after subsection (1):— (1A) A person shall not be guilty of an offence under subsection (1)(c)(i) above by reason of the use, for the purpose of taking or killing any deer on any land, of any smooth-bore gun of not less gauge than 12 bore which is loaded—

1. (a) with a cartridge containing a single non-spherical projectile weighing not less than 350 grains (22.68 grammes); or
2. (b) with a cartridge purporting to contain shot each of which is .203 inches (5.16 millimetres) in diameter (that is to say, size AAA),

if—

1. (i) he is an authorised person; and
2. (ii) he has reasonable grounds for believing that deer of the same species are causing, or have caused, damage to crops, vegetables, fruit, growing timber or any other form of property on that land; and
3. (iii) it is likely that further damage will be so caused and any such damage is likely to be serious; and
1135
4. (iv) his action is necessary for the purpose of preventing any such damage.

(1B) In subsection (1A) above "authorised person" means—

1. (a) the occupier of the land on which the action is taken;
2. (b) any member of the occupier's household normally resident on the occupier's land, acting with the written authority of the occupier;
3. (c) any person in the ordinary service of the occupier on the occupier's land, acting with the written authority of the occupier; or
4. (d) any person having the right to take or kill deer on the land on which the action is taken, or any person acting with the written authority of a person having that right.

(1C) A person shall not be guilty of an offence under subsection (1)(c)(i) above by reason of the use as a slaughtering instrument, for the purpose of killing any deer, of any smooth-bore gun which—

1. (a) is not of less gauge than 12 bore; and
2. (b) has a barrel less than 24 inches (609.6 millimetres) in length; and
3. (c) is loaded with a cartridge purporting to contain shot none of which is less than .203 inches (5.16 millimetres) in diameter (that is to say, size AAA or any larger size).

(1D) A person shall not be guilty of an offence under subsection (1)(c)(i) above by reason of the use of any smooth-bore gun for the purpose of killing any deer if he shows that the deer had been so seriously disabled otherwise than by his act or was in such a condition that to kill it was an act of mercy.

(1E) The Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly may by order, either generally or in relation to any area or any species and description of deer specified in the order, repeal subsection (1A) above or amend it by adding any firearm or ammunition or by altering the description of, or deleting, any firearm or ammunition mentioned in it, or by adding any further conditions which must he satisfied.

(1F) Before making any order under subsection (1E) above the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly shall consult such bodies as appear to them to represent persons likely to be interested in or affected by the order.

(1G) Any order under subsection (1E) above shall be made by statutory instrument, but, notwithstanding anything in section 12(1) below, no such order shall be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.".

(b) in section 10 the following subsection shall be substituted for subsection (3):— (3) A person shall not be guilty of an offence under section 1 of this Act by reason of—

1. (a) the taking or killing of any deer by means of shooting; or
2. (b) the injuring of any deer by means of shooting in an attempt to take or kill it,

on any cultivated land, pasture or enclosed woodland if—

1. (i) he is an authorised person; and
2. (ii) he has reasonable grounds for believing that deer of the same species are causing, or have caused, damage to crops, vegetables, fruit, growing timber or any other form of property on that land, pasture or woodland; and
3. (iii) it is likely that further damage will be so caused and any such damage is likely to be serious; and
4. (iv) his action is necessary for the purpose of preventing any such damage;

and in this subsection "authorised person" has the same meaning as in section 3(1A) of this Act.";

(c) in Schedule 2 the words "of less gauge than 12 bore" and "other than a cartridge purporting to be loaded with shot none of which is less in diameter than .269 inches" shall be omitted.").

The noble Lord said: In moving this amendment, I make two preliminary points. In case the noble Earl, Lord Caithness, is worried, may I say that if he looks at the Long Title to the Bill that makes it clear that the Bill is concerned, to prohibit certain methods of killing or taking wild mammals", so that the amendment which I move is in the spirit and, indeed, in the letter of the Long Title. The second preliminary point is that I hope that, in view of my having been able last night, admittedly rather late, to table the amendments which have now become 1F and 1G to which reference has just been made, I hope it will now be possible for the noble Lord, Lord Dulverton, not to move his amendment because I have covered it in paragraphs 1F and 1G.

This is a bit of unfinished business. The Committee will remember my introducing a Deer Bill no less than three times between 1970 and 1980. The principles that I underline in the amendment that I now move were embodied in these Deer Bills and were accepted by your Lordships. Indeed, the actual wording of the amendment is virtually the same as in the corresponding provisions of my Bill when it left your Lordships' House two years ago. This is nothing new. It has all been here several times before and it has been a very long job trying to get it through.

In the last Session, Mr. John Farr, who took over and introduced the Deer Bill in another place, realised that, because of the large number of Private Members' Bills, the only chance of the Bill completing all its stages lay in abandoning some of the provisions so that it could go through "on the nod" at four o'clock —as it must in the House of Commons; and as it finally did. It is now law as a shortened measure. It is the abandoned provisions, the shelved provisions, that I am now seeking to retrieve and enact. Both extend to England and Wales only, so we are not now dealing with Scottish legislation. Both, clearly at this stage, had Government approval when they went through this House on the last occasion in the original extended version of my Bill. The first provision is to restrict the use of shotguns on deer and the second is to tighten up provisions on the killing of deer during the close season. These two questions have been fully debated in this House.

I would say now that my amendment has a dual aim—on the one hand, humanitarian and, on the other, as an additional weapon to ban deer poaching, which has reached unacceptable proportions throughout the countryside wherever there are deer. I want to stress that if a person has a genuine need to use a shotgun and if the use is justified and, similarly, if it is genuinely necessary and justified to kill deer during the close season, my amendment would not prohibit either of those things. Many of us deplore the killing of deer with shotguns—or, should I say, attempting so to kill deer. Noble Lords who have joined me in the previous debate have personal experience of shooting deer with shotguns on deer drives, for example, and will know that many deer are wounded and several shots are often needed to finish off the animals. Often, the deer escape to die of their wounds. This is especially true when deer are moving at a gallop, which is often the case.

This is not good enough. It does nothing for our reputation that Britain should be almost the last country in Europe where shotguns using lettered or numbered shot are still allowed for killing deer. Deer are large animals. They are extremely difficult to kill with a shotgun outright and cleanly except at very close range—maximum of 30 yards and it is extremely difficult to get within 30 yards of a deer. The number of deer roaming about with shot in their bodies is proof of the ineffectiveness and cruelty of shotguns.

Furthermore, the use of shotguns is invariably unselective. In others words, it is seldom possible to select the animals—even the sex—that should be shot. The second consideration is that while very few poachers have rifles, they often manage to get hold of shotguns—probably illegally. Everyone is agreed that all possible steps must be taken to curb the widespread activities of deer poachers, who are callous in the extreme and have no respect for the law, for other people's property, for farm animals or indeed for people, whom they often threaten and assault.

Likewise, poachers are no respecters of close seasons. The second part of my amendment therefore is aimed at deer poachers as well as the trigger-happy and unscrupulous who kill deer regardless of close seasons which, as many of the Committee know, are designed on humanitarian grounds and for reasons of good deer management. Almost every country in Europe has laid down close seasons for deer. It is right that exemptions should be strict, as they are in my amendment, and subject to specified conditions.

Members of the Committee who were present when we debated my Bill will remember that the provisions in the Bill had the support of virtually every relevant organisation. Here I should like to say how grateful I am to the National Farmers' Union for their valued co-operation in enabling us to reach agreement on the precise terms incorporated in my amendment.

I come therefore finally and briefly to the precise terms of a very long amendment. It takes the form of amendment to the Deer Act, the parent Act, of 1963. If noble Lords will look at paragraph (c) on page 12 of the Marshalled List—and I apologise that this amendment is so complicated—it will be seen that it deletes that part of the schedule to the 1963 Act dealing with shotguns. Having done this, my amendment in paragraph (a) on pages 10 and 11 redefines the types of shot that are to be permitted, the rifle slug and the AAA size of shot which, though smaller than that in the 1963 Act, is less cruel because of the greater number of shot. Tests have shown these two types to be the least unacceptable in a shotgun. The amendment then goes on to define the circumstances in which these two types of shot may be used: where an occupier (or person properly authorised) needs to protect his property, particularly growing crops, from deer causing damage. All the words, I emphasise again, have been gone over at least three times in your Lordships' House to get them exactly right.

Subsection (1C) on page 11 of the Marshalled List makes a special exemption for the use of the shortened shotgun as a slaughtering instrument. Subsection (1D) provides for mercy killing. Subsections (1E), (1F) and (1G) allow Ministers—the Minister of Agriculture being specifically included—to vary the types of weapon and shot by area or by species as proves desirable, so long as there is prior consultation with interests like the farming community, and so long as the procedure is by affirmative order in both Houses. This leaves us finally with paragraph (b) on page 12. This brings up-to-date, by using terms agreed to by the House in my original Deer Bill, the permitted exemptions from the prohibition in the 1963 Act on shooting out of season.

I apologise if I have taken rather long, but this is a lengthy and very complicated amendment. However, I hope that I have taken your Lordships' Committee through it to the point where the incomprehensible looks reasonably comprehensible. I hope that the Committee will sympathise with my objectives in trying to remedy a deficiency in the 1963 Act, to make it more humane, and to complete what I say has been unfinished business so far as your Lordships' House is concerned in getting these provisions finally on to the statute book. I beg to move.

The Deputy Chairman of Committees

I must now call Amendment No. 188ZA as an amendment to Amendment No. 188.

Lord Dulverton had given notice of his intention to move, as an Amendment to Amendment No. 188, Amendment No. 188ZA:

At end of subsection (1E) insert— ("Provided that no order shall be made under this subsection unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.").

The noble Lord said: The amendment was tabled by my noble friends and myself before the noble Lord, Lord Northfield, set down his own amendment. Now that he has done so, our amendment is quite redundant, and I do not propose to move it.

[Amendment No. 188ZA not moved.]

The Deputy Chairman of Committees

Amendment No. 188ZA is not moved. Therefore Amendment No. 188 stands as proposed.

Earl Ferrers

The noble Lord, Lord Northfield, said that this was a long and complicated amendment, which indeed it is, and he asked for the sympathy of the Committee, which I think he will receive. I must say that I admire his ingenuity and persistence in trying for, I think, the fourth time to get on to the statute book a Bill in which he has been involved, but which for one reason or another he has not been able to get on to the statute book. There was a Deer Act in the last Session. It went through Parliament, was considered by your Lordships, and as a result of that only half of the Bill or thereabouts got on to the statute book. It had in that respect a regrettable history. I had a certain sympathy with my noble friend Lord Caithness when earlier he asked whether this was the correct Bill in which to make major alterations to other legislation, and indeed to the Deer Act.

The Government do not consider it appropriate to extend the scope of this Bill in order to reconsider the Deer Acts which have been so recently debated and indeed passed in both this House and another place. Deer are now controlled by the Deer Acts of 1963 and 1980, and I think it would be inappropriate and confusing to control them yet further by the Wildlife and Countryside Act 1981, as the Bill will become. That is the reason why I should find it difficult to accept the noble Lord's amendment.

Lord Northfield

The noble Earl spoke about control, but this has nothing to do with control in that sense. It is to do with the methods of killing, which the Long Title specifically includes in the Bill.

Viscount Mountgarret

The noble Lord, Lord Northfield, needs some support here. I would agree exactly with what he has just said. If we can get on to the statute book a method which would bring about some form of control over the use of inappropriate weapons in relation to deer, and, if we can do it in the easiest possible form, so much the better. If it is possible to do that through this Bill, so be it—rather than go through a long rigmarole to which your Lordships' House has previously agreed.

Lord Donaldson of Kingsbridge

This is a great disappointment for those of us on this side of the Committee. I think that the provisions proposed by my noble friend are agreed by everybody; I do not think that there is a single dissident. They fell by the wayside because of the kind of quirks which go on in another place, and which we in this House who were not there can never understand. The matter has been through this House, and I must ask the noble Earl at least to take away this proposal and think about it, which he has done in regard to every other clause in the entire Bill. Since this is one of the best of them, I think that at least he should do what I suggest.

Lord Beaumont of Whitley

One just cannot win in this Chamber, or in Parliament. Bills come through and are passed. Then, after a short time, it seems that there is a need for some amendment. It may be five or 10 years before another Bill comes through or there is another opportunity or the Government are prepared to have another look at it. For those years we usually endure in silence—not necessarily in silence, but we endure—

Lord Donaldson of Kingsbridge

In effective speech.

Lord Beaumont of Whitley

In effective speech, as the noble Lord says. Then, when by chance it so happens that a Bill comes, within whose Long Title this amendment which, it is agreed by all, can absolutely rightly fall without in any way infringing the constitutional proprieties, we are told that it is not suitable. I do not think that is a good enough answer. This is an inspired use of this Bill for doing something we all want to see done. I hope that the noble Lord will take it away to look at it and then bring it back again and say "Yes".

Lord Tyron

I too should like to support this amendment. I am a veteran of the innumerable Deer Bills which have gone through your Lordships' Chamber and have only in very small part seen the light of day. I really think the noble Lord needs a little more encouragement than we have seen so far. This is a very brave attempt to achieve something in a slightly unorthodox way. I have from time to time encouraged the noble Lord, Lord Northfield; I have been critical of some of his earlier Deer Bills, but I want to say that everything in this amendment I wholly approve of.

Viscount Hanworth

From this side of the Cross-Benches I too should like to support the amendment. I really do not think it is good enough to have this excuse once more that it could be better put somewhere else, if that means 10 years' hence.

Lord Dulverton

May I add to those words from various sides of the Committee and urge my noble friend on the Front Bench to deal sympathetically with this amendment? We have been sympathetic to the badger amendment and, after all, the noble Lord, Lord Northfield, did on a previous occasion get the approval of this Chamber to the measures he is now proposing.

Lord Gisborough

I hope that the Government will look at this again. I am glad that the noble Lord, Lord Northfield, has introduced this amendment. I have one very strong criticism about all his Deer Bills, which is that they are not nearly tough enough!

Lord Craigton

I support this amendment, which I think has been accepted by your Lordships: it is down on the Marshalled List. It is in conformity with the Long Title, and a similar type of amendment with regard to the Badgers Bill has been accepted. I have great respect for the Front Bench but I really cannot see how they can say that this is not in order or that it should not be at least considered.

Viscount Ridley

The noble Lord, Lord Northfield, must need the support of all of us. He has tried so hard to get this and I for one have supported him when I can. I hope the Government will look again at this matter.

The Earl of Cranbrook

Just in case it makes it easier for my noble friend on the Front Bench, may I point out to him that under Article 8 of the Berne Convention, to which this country is a contracting party, all Appendix III animals are to be protected from indiscriminate means of killing and all deer are included in the appropriate schedule?

Lord Stanley of Alderley

Before my noble friend gets up, I think that he needs a little bit of support! I have always been against the noble Lord, Lord Northfield, on his Bill, although I fully accept that what he is moving now is in the spirit of what we agreed when it left this House. What slightly worries me—and I am sure it worries the noble Lord too—is that I only saw the final amendment to this at midday today. I think it is correct, but I honestly cannot say that it is. I think that he is, as usual—and good luck to him!—pushing his luck here. I think the Government are right to take it away and look at it and to make sure that it is right. Perhaps I should say that I hope the Government will take it away and that they will not accept it; but if they do take it away, I hope they will consult all the parties that the noble Lord, Lord Northfield, would want to be consulted.

Lord Donaldson of Kingsbridge

I hope that the noble Earl will notice that the only supporter he had still thinks he is wrong.

Earl Ferrers

I have been trying to get to my feet during the last few minutes, just to say that I was so grateful when my noble friend Lord Cranbrook said that he would do anything to make life easier for me, and then proceeded, so far as I could see, to put a knife into my back. When the noble Lord, Lord Beaumont, said "You can't win on this Bill", he never said a truer word, as I was castigated by the noble Lord, Lord Houghton, a little earlier, because he said that I always took things away and would not make up my mind.

We have now come to this amendment and I gave the Government's view that this was an inappropriate Bill into which to put it, because the Deer Acts were implemented in 1963 and 1980. I knew that the Government considered that it was inappropriate, so I told the noble Lord so. I did not expect for one moment that he would find that acceptable. I also did not expect for one moment to find that there would be such a lot of opposition to that modest suggestion of mine, which seemed totally reasonable.

But, in view of the fact that your Lordships on all sides consider that this is an entirely reasonable amendment to put into this Bill, even though I may not agree with it, then of course, in the delightful phrase of the noble Lord, Lord Donaldson, I will take the thing away and will certainly look at it again. But I am bound to tell your Lordships what I told the noble Lord, Lord Northfield, in the first instance, that the Government considered that this was not appropriate. However, your Lordships seem to consider that it is appropriate, so I will take it away and think about it.

Lord Northfield

I am grateful that the chorus of supporters made the Minister kindly agree to take this away and look at it. But I would make two points to him. First, I hope that there will not be any doubt about the drafting. I am not talking about the technical detail; I am simply talking about the major proposals in the amendment. They have been agreed by your Lordships on several previous occasions. So there is no question here that I am introducing anything new. We have been over this many times, and I hope that that is agreed by him. So in agreeing to look at it, I hope the noble Earl is not saying that he will look right from the beginning again at the whole principle here. We have been over it several times and I hope that the whole House is tired of it. The second point is—

Lord Avebury

Would the noble Lord agree that the noble Earl's consideration should be confined to an examination of these proposals to see whether they are, in effect, the same as the ones that the noble Lord has presented in his Bills on three previous occasions? The question of whether or not this is appropriate here has already been determined by your Lordships this afternoon, provided that the noble Lord is advised that it fits within the Long Title.

Lord Northfield

I am grateful for that support. My second point is that I beg the noble Earl to reflect on one other problem, which is that if we do not make this final amendment of the Deer Act here, the chances of doing it for another five years are almost nil, for very specific reasons. The whole country is waiting for a Bill to amend the legislation regarding deer in Scotland. You really cannot deal with England and Wales within that one. The whole question involved in Scottish law will take some time to bring up to date. Furthermore, your Lordships' house—and I am surprised that the noble Viscount, Lord Thurso, has not intervened—is also waiting for another Bill to deal with deer farming. So the chances of this third lot being dealt with within the next five years, with those two already waiting in the queue, is nil, unless we put it into this Bill. Therefore, I hope that in looking at it, the noble Earl will have those points in mind, in addition to the ones that I have made.

Lord Melchett

The noble Earl did not have the advantage which we on this side have, of seeing the serried ranks of nodding heads behind him while my noble friend was speaking. My feeling is that it might be better to put this into the Bill and allow the Government to amend it, if they want to. That seems to be in accord with the general feeling of the Committee and it would allow the Government to look at the drafting when we get to the Report stage.

Earl Ferrers

The noble Lord, Lord Melchett, says that I have not had the advantage of sitting on his side, but if there be any advantage in seeing nodding heads on my side he is welcome to that advantage. I say to him that it is slightly disingenuous and unfair, when a Minister conies to the Committee to state in all sincerity what the Government feel, and, becoming aware of the pressure of feeling in the Committee, says "All right, I will take this away and look at it" to say "Let's push it into the Bill now". I have given an undertaking to the noble Lord, Lord Northfield, which is not constrained or constricted. Of course I will consider this in its entirety, and I should have thought that, with that undertaking, it would have been reasonable for the noble Lord not to press the amendment.

Lord Northfield

I am in the hands of the Committee. On the whole, I think it would be wise to withdraw the amendment. If the Government come up with very poor reasons for refusing it at Report, I hope that those noble Lords who have been very kind to me over the years in supporting it will all turn up again. Next time we shall vote it through, whatever the Government say. In the circumstances, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Viscount Ridley moved Amendment No. 188A:

After Clause 11, insert the following new clause:

("Amendment of Conservation of Seals Act 1970

.—After subparagraph (iii) of section 10(1)(c) (power to grant licences) of the Conservation of Seals Act 1970 there shall be inserted the following subparagraph— (iv) the protection of the flora or fauna of a nature reserve within the meaning of Part III of the 1949 Act or an area of special scientific interest of which notification has been given to any local planning authority under section 23 of the 1949 Act or which is designated by order under section 26 of the Wildlife and Countryside Act 1981,".").

The noble Viscount said: I wish to risk the wrath of the noble Lord, Lord Home of the Hirsel, and very briefly to return to the question of seals. I do so because it is in the interests of the conservation of the animals and birds which we have been talking about for so many hours. It is also very urgent that this matter should be considered. I should explain that this amendment was put down at short notice. Only a few days ago did the National Trust, who inspired this amendment, realise the possibility of such an amendment. There will be no question of pushing it tonight, but I should be very grateful if the matter could he considered by the Government. I should add that the Nature Conservancy Council are entirely behind such an amendment. I believe that the late Lord Cranbrook who introduced the Conservation of Seals Act 1970 into your Lordships' House would not have opposed it. Indeed, he might have supported it.

Section 10 of this Act concerns the reasons for which a Secretary of State may in certain circumstances give a licence to kill seals. The first of these is where damage to fisheries has been proved; secondly, where a reduction in the surplus population of seals is required; and thirdly where the use of such a population surplus as a resource is possible. All that is required to be added to improve this Act in a very brief and small way is a fourth reason: the protection of the habitat of a nature reserve occupied by seals. This is to be done in the interests of the other inhabitants of that nature reserve.

I speak mainly about the Fame Islands off the North-East coast of England, which I have known intimately all my life and which have on them a very large population of grey seals. The statistics are that in 1930 there was a population on these islands of some 400 seals. In 1980, it is estimated that this population reached 8,000 seals. That population is still increasing and may be spreading to islands in the Firth of Forth further north. These islands consist of a group of about 30 islands, nearly all of which are quite suitable for seals to breed on. They are mostly composed of solid rock and are perfectly acceptable. The seals do no harm there and are welcome in some respects, but on some of the islands there is a fragile cap of soil and vegetation which has been threatened in the past few years by this increase in the seal population.

There have been fairly successful attempts to drive most of these seals away to the islands where no harm is done. On about two of the islands it is considered by those responsible for the management of the islands which belong to the National Trust that some of the seals should or may have to be killed in order to protect the habitat of the birds which use this soil to nest in. It is for that reason that this amendment is sought.

I understand that the Secretary of State has said that under the Act as it stands at present he cannot give a licence for such a cull unless such an amendment is introduced. Therefore it seems to those responsible to be an urgent and necessary amendment, which I hope will in due course be accepted and which would not in any way have any effect on the number of seals. That is not the point which we are trying to make. This is not an anti-seal amendment. I believe that those responsible believe it to be important to have it before next autumn's breeding season.

The birds which are threatened by the erosion of the soil cap—which, should it happen, is something which can never be replaced—are at least three major and important species and they form part of that very important bird sanctuary: the eider duck, the puffin and the roseate tern. The latter is one which we have just put into Schedule 1 to the Bill. It is an extremely rare breeding bird in Britain. They need soil and vegetation to breed on. IF the soil goes, they may disappear. Therefore the amendment is, strictly speaking, in the interests of the conservation of nature reserves and I hope very much that it will be possible to accept it. I beg to move.

Lord Gibson

I want to support the amendment, for the very simple reason that the National Trust, of which I have the honour to be chairman, holds, as the noble Viscount, Lord Ridley, has said, these islands. They are sites of special scientific interest, Grade 1, and it is our duty to preserve the ecological balance on these islands. The reason why I am particularly anxious to support this amendment is that, if we were to accept the view and if the Government were to press the view that this was not an appropriate Bill in which to incorporate a minor change to the Conservation of Seals Act 1970 and we had to wait several years—five or more—for that change to be made, there might well not be a soil cap left for the National Trust to preserve and we should find ourselves inalienably preserving some barren rock in the North Sea, which seems to be a pointless exercise. I hope your Lordships will give consideration to that point.

We have done a great deal for the seal population of the Farne Islands which, as the noble Viscount has said, has increased some 20 times during our stewardship, and all we want is for the Secretary of State to be given the power to issue a licence to cull for the welfare of the flora and fauna and the ecological balance of the islands in addition to the welfare of the seals themselves.

Earl Ferrers

The amendment would make it clear that a licence would be granted to enable action to be taken against seals where they were causing damage to the flora and fauna of areas which were recognised as being of particular importance because of their nature conservation value. This may not be the case at present and although I accept the arguments put forward by the noble Lord, Lord Gibson, and by my noble friend, we wish to look at this matter along with other changes to the Seals Act on a later occasion. I am not in the slightest out of sympathy with the view which has been put forward, but dare I express the hope that this amendment will not be pursued too far because I do not think it would be a good thing to amend the Conservation of Seals Act piecemeal? There will be an occasion when we can do it rather than attempting to do it in this Bill.

Viscount Ridley

I wonder whether my noble friend can indicate when there might be an occasion to amend the Conservation of Seals Act because, as I have said before, I do think it is somewhat urgent and it affects the basic provisions of that Act.

Earl Ferrers

The answer is "some time". I would not wish to be more precise than that.

The Earl of Cranbrook

At the risk of boring the Committee, I should like to reiterate a point which has been made from the Front Bench. It is a sentiment which I heartily support—that this Bill is about conservation; that is to say, about the appropriate management of our wildlife resources in this country. The National Trust has exercised its trust in an admirable fashion in managing the wildlife resource of an extremely small and fragile part of our national environmental heritage, the Farne Islands, which I hope many of your Lordships have visited, because it is an experience of extreme delight.

The point has been made by the noble Lord, Lord Gibson, and perhaps it needs emphasising to my noble friends on the Front Bench that the problems of the Fame Islands cannot wait for ever until the legislative processes take their due course. Seals are wearing away the soil on these islands and the soil itself supports not only an interesting island flora but it is also the nesting site of the protected birds which are nesting on these islands. These islands are of great interest. Island habitats themselves are always scientifically important in any country, providing they are adequately preserved. I understand that what is being asked for here is the appropriate authority to carry out correct environmental management and this must be the central aim of the legislation we are talking about.

Lord Avebury

I was not going to enter into a discussion on the merits of the amendment because, although I listened carefully to the noble Viscount, Lord Ridley, I am not an expert on the Fame Islands or on their conservation as a habitat of birds, which he claims is being jeopardised. However, I did want to say one word about the general principles on which the Minister's reply was based, which seemed to me to be similar to those which applied in his answer to the previous amendment of the noble Lord, Lord Northfield. I wonder whether it is altogether appropriate, if I may venture to say so to the noble Earl, to rest the ministerial case on the inappropriateness of a particular amendment and the remark that one should not amend other legislation in a piecemeal way by amendments in this Bill. Should not the Minister, in replying definitively to the noble Viscount, Lord Ridley, or the noble Lord, Lord Northfield, address himself to the merits of the amendment itself and not to the question of whether or not they should appear in this Bill?

Would it not be enough for him to satisfy himself—as I asked the noble Lord, Lord Northfield, during his speech a few minutes ago—that whatever was proposed did fall properly within the Long Title of this Bill, and then, providing that was so, to look at the amendment on the merits of the speeches made by noble Lords and see whether the amendment made a positive contribution to the position of deer or seals or what ever the case may be. If one looks at this amendment in the light of that principle, one asks, "Does it form a useful addition to the Conservation of Seals Act 1970?", not, "Is it a good idea for us to amend the Conservation of Seals Act 1970 on a piecemeal basis?" To use that argument seems to me to destroy any possibility that we have of amending other legislation by reference. It is, after all, a very well-established practice in the legislation of this country to refer back to previous Acts and to put in amendments by means of additional clauses or alterations to clauses already found there. If the Minister is to be empowered simply to reject any amendment which seeks to do this without addressing himself to the contents of the amendment, I do not think we are going to get very far. I hope the noble Earl will agree, on the same basis as he did with Lord Northfield's amendment, to take this amendment away, consider it and come back on Report stage with a more carefully thought out argument.

Lord Home of the Hirsel

I hope my noble friend will stick to his original position. If questions under the Conservation of Seals Act are to be raised, I should have to raise the question of the number of seals encouraged by the National Trust. My noble friend Lord Ridley gave the statistics just now—from a comparatively small number to 8,000. They are causing great problems to the net fishers in the Tweed and the Forth, and to the rod fishers. I do not want that controversy to be imported into this Bill, but it will be if amendments like this are accepted. I have every sympathy for the flora and fauna the National Trust want to protect, but that is not the only question that concerns the Fame Islands. We should have much more controversy if my noble friend gave way to the request of the noble Lord.

Lord Craigton

This discussion this evening is part of the whole conservation movement throughout the world. You conserve a creature, and then you upset the balance of nature and so you get too many of them in many cases. We have done that in Parliament. We have conserved the seal. Now all we are seeking to do is to put right the imbalance by doing something the other way. I think that is entirely logical. I support the amendment.

Lord Melchett

I was assuming, as the Government wanted to take this amendment separately from my own amendments to the Conservation of Seals Act, that there was going to be a different attitude to it, and I was disappointed to hear what the noble Earl had to say. I withdrew my amendments because they were (a) not urgent, as the noble Viscount has made clear this amendment is, and (b) did not seem to me to raise sufficiently important enough points for me not to take the advice of the noble Lord, Lord Home. But although I thought his advice very valuable when he directed it at me, and I accepted it, I would urge the noble Viscount on this occasion not to accept it, and would support him in the amendment he has moved.

Earl Ferrers

I should just like to say that of course when any noble Lord puts down an amendment it is important to consider the merits of the amendment properly. But that is not the Government's only job. The Government have to try to ensure that such legislation as is produced is produced in as reasonable, as understandable and as convenient a fashion as possible.

The noble Lord, Lord Avebury, said that one should address one's answer to the merits of the amendment as a whole. I have a great deal of sympathy with the merits of the admendment and I think that there could well be occasions when the amendment should be accepted. What I said to my noble friend who moved the amendment is wholly consistent with what I said to the noble Lord, Lord Melchett; namely, that I have no doubt that the day will come when we shall have to amend the Conservation of Seals Act because there are a number of points—and he produced some earlier on—which require amendment and alteration. I believe that that is the correct way to do it and not to amend it now, and then later on.

Of course, in any conservation Bill such as this, one is conserving at the one moment seals and at the next moment flora and fauna, and there will, periodically, be a clash. I would only say to your Lordships that of course I accept and understand the meaning and the requirements behind the amendment. But I would ask your Lordships to consider that it is not appropriate, as my noble friend Lord Home of the Hirsel said, to amend the Conservation of Seals Act in this way and at this moment, because it may well prove more controversial than expected.

Viscount Ridley

As I said earlier, this amendment has not been before your Lordships for very long—for only two or three days. There is no question whatever of my pressing it. However, I feel that it is possibly so important that it may be necessary to put it down again at Report stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 [Mammals which may not be killed or taken by certain methods]:

10.3 p.m.

Lord Houghton of Sowerby moved Amendment No. 189:

Page 51, line 22, at end insert—

("Seal, Common	Phoca vitulina
Seal, Grey	Halichoerus grypus").

The noble Lord said: I beg to move Amendment No. 189 which adds to Schedule 6 the common seal and the grey seal. What is involved here is what the Government are doing to comply with the Council of Europe Convention on the Conservation of European Wildlife and Natural Habitats because both these species appear under Appendix III of that convention. The convention requires the contracting parties to prohibit or control the indiscriminate methods of capture and killing.

I understand that in the information paper produced by the Department of the Environment dated 28th August 1980, they had proposed, in conformity with the convention, to include both these species of seal in what is now Schedule 6 to the Bill. However, they changed their minds about that. Whether the noble Earl will argue again that it is better to deal with everything under the Conservation of Seals Act I do not know, but meanwhile, at any rate, these two species of seal will not be protected from various methods of killing which are in the convention and which are governing Schedule 6.

So at the moment the exclusion of these two species from Schedule 6 means that they are not receiving the protection which the convention said they should receive and which contracting parties are obliged to give. Therefore, they are exposed to methods of killing at present which Schedule 6 would stop, and if they are not included in Schedule 6 they will continue to be exposed to those methods until some other step is taken. I am sure that Her Majesty's Government want to comply with their international obligations, especially when they are in Europe.

Viscount Thurso

Is there not a misprint here because on page 51, line 22, the amendment would put seals in between saxifrage and sow-thistle?

Earl Ferrers

The noble Viscount, Lord Thurso, is rather quicker off the mark than I am, but I shall certainly see whether there is a misprint. Perhaps I might reply to the noble Lord's amendment as a whole. The Government accept the need to continue to give statutory protection to the two British species of seal, the common seal and the grey seal, to which this amendment relates. But as the noble Lord knows, we have—we referred to it earlier this evening—the Conservation of Seals Act 1970, which, as I said, I thought it would be inappropriate to alter piecemeal. But in the Government's view this Act meets our obligations under the Berne Convention.

This does not mean, of course, that we would regard the Act as perfect or that the Government would countenance indiscriminate or cruel methods of killing seals. The fact is that the methods which are listed in Clause 11 are mainly of no relevance to seals or they are effectively prohibited by the 1970 Act. For ex ample, the Act prohibits the use of poison or shooting with other than a prescribed rifle; a method not expressly prohibited in the Act would be applicable only during a close season when the killing or taking of seals is prohibited, except under the licensing powers of the Secretary of State under the Act.

I can assure the noble Lord that my right honourable friends with responsibilities under the Act do not issue licences which would allow indiscriminate or cruel methods of killing. As I said earlier, I think that there may be an occasion later when the Conservation of Seals Act as a whole may be amended or reconstructed, but at the moment I think that it provides the protection which is required.

Lord Houghton of Sowerby

I am grateful to the noble Earl and I am moderately satisfied with his reply. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken had given notice of his intention to move Amendment No. 190: Page 50, leave out line 37.

The noble Lord said: This amendment would remove the red squirrel from Schedule 6. When I tabled Amendment No. 144 and this amendment I was under the mistaken impression that there was no need to include the red squirrel in Schedule 6 because it would be fully protected by its inclusion in Schedule 5. As a result of what the noble Earl said when I moved Amendment No. 144, I now realise that it should remain on Schedule 6 so that it may no longer be killed or taken by the methods specified in the Bill. Therefore, I do not wish to move this amendment.

[Amendments Nos. 190 to 193 not moved.]

Schedule 6 agreed to.

Clause 12 [Protection of Wild Plants]:

[Amendment No. 194 not moved.]

Baroness David moved Amendment No. 194A: Page 13, line 22, leave out ("wild").

The noble Baroness said: We turn now to plants. Clause 12 deals with the protection of wild plants. I should like to move Amendment No. 194A and to speak to Amendment No. 195 at the same time. The purpose of these amendments is to facilitate enforcement of this part of the Bill. As drafted, the Bill allows the sale of protected plants provided that those offered for sale have been cultivated and are not wild plants as defined in Clause 25. This is desirable both in order to avoid any interruption in a long-established and respectable trade conducted by specialist nurserymen and because if, say, the Cheddar pink is obtainable from nurseries, there is less temptation to take it from the wild. Yet, as drafted, the Bill offers a dishonest nurseryman easy defence, for it will be almost impossible to prove that a plant offered for sale is taken from the wild unless the offender is actually caught in the act of uprooting it. The amendment would in effect restrict the right of sale to those able to establish that the plants offered are cultivated ones and not wild plants. I beg to move.

Lord Cullen of Ashbourne

I must resist these amendments. We do not consider that it would be appropriate to extend the same offence to cultivated plants, which is one of the effects of these amendments. There are a number of reasons for this use, one of which is that cultivation increases the stock of plants available and does not diminish it. This is a form of conservation which we would not wish to jeopardise.

As to the proposed subsection (4), it appears to be designed to make it a defence in offences under Clause 12(1) to show that a plant was cultivated and not found wild. This is already the effect of referring in subsection (1) to a wild plant when one takes into account the definition of the expression "wild plant" in Clause 25 of the Bill. Indeed, subsection (1) goes further in so far as by virtue of the definition of "wild plant" you do not commit an offence if your action only relates to a cultivated plant, and thus you do not need the defence in such circumstances. In view of that, I hope that the noble Baroness will withdraw her amendment.

Baroness David

I do not feel at all inclined to withdraw it because I am not convinced by what the noble Lord has said, but I should like to have time to study it and consider whether I am satisfied with the answer or whether I shall bring this back at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 195 to 197 not moved.]

Clause 12 agreed to.

[Amendment No. 198 not moved.]

Schedule 7 [Plants which are protected]:

10.13 p.m.

The Duke of Atholl moved Amendment No. 199:

Page 51, line 19, at end insert—

("Primrose, Scottish

Primula scotica").

The noble Duke said: This amendment is simple and I hope completely non-controversial. I hope that noble Lords on the Front Bench will be able to accept it. The Scottish primrose, primula scotica, is an extremely rare plant on the mainland of Scotland, although I must admit that it is quite common on Orkney, but so far as I know not on any of the other islands off Scotland. This amendment is supported by the Scottish Landowners' Federation, the Scottish Wildlife Trust, whose emblem this plant is, and, I believe, the Nature Conservancy Council in Scotland.

It would not cause any difficulties to any other plants if this amendment were accepted. So far as I am aware, it does not smother any other plants, or act in a nasty way towards any other plants or towards any animals, insects, crustaceans or anything else. Therefore, I hope that my noble friends will feel able to accept this amendment, as it is important to protect what is one of the few uniquely Scottish plants. I beg to move.

Baroness David

May I issue a word of caution about accepting this amendment? This delightful plant is endemic to Scotland and is therefore included in the list of the International Union for the Conserva tion of Nature and Natural Resources. However, contradicting what the noble Duke said, it is fairly widespread and locally abundant along the north coast. It is very attractive and is coveted by gardeners, and the only reason why the botanical interests have not proposed the inclusion of primula scotica in Schedule 7 is that they are anxious that the list should not appear unmanageably long or merely arbitrary but should be confined to those plants which, on careful scrutiny, are seen to be really in danger; and because of its abundance, the Scottish primrose cannot be placed in that category. If there were room for an exception, it would of course have a strong claim for being on the RCUM list, but the botanists are anxious not to prejudice Schedule 7 by putting on it something which is not at this moment endangered.

Lord Inglewood

Despite what the noble Baroness, Lady David, has said, we should at this time put in Schedule 7 all those plants which we feel are in danger. The suggestion that by putting more, rather than fewer, on the list we are weakening the whole position is, I believe, false. I support my noble friend. It is not often that someone who lives near the southern side of the border has the opportunity wholeheartedly of supporting some Scottish interest, but on this occasion I do. We should be careful to ensure that when the Bill leaves us the list is complete and does not have items left off it just because, by putting them on, it would be longer than some optimum in certain people's heads.

Baroness David

I was not suggesting that it would be longer than some people want but that what should be on it should be particularly endangered plants.

The Duke of Atholl

In reply to the noble Baroness, Lady David, I believe that recently its numbers in the north of the mainland of Scotland have decreased considerably due to a large extent to people taking it, as she rightly said, to put in their gardens; at least I presume that is why they take it. It is therefore important to get it into Schedule 7. She is of course right to say that in Orkney it is a fairly common plant, but Orkney is quite inaccessible and, as it disappears from the north of Scotland, we may find that it starts diminishing in Orkney too. I should be happier, as my noble friend Lord Inglewood said, if it could be put in Schedule 7 now, while locally in Orkney it is still reasonably common, rather than waiting for it to become rare in Orkney as well as on the mainland of Scotland.

Lord Cullen of Ashbourne

I am afraid I must ask the Committee to resist the amendment. We are advised by the Nature Conservancy Council in these matters and they advise that the Scottish primrose is not in danger, nor is it likely to become in danger of extinction. As my noble friend said, it is found widely on the northern coast of Scotland and in much of the Orkney Isles, and, although its distribution is relatively restricted, where it occurs it is abundant. There is therefore no need to afford it special protection. Further, I understand that, if this particular species were added to the list, there are probably several others which would come in the same category. Although, therefore, we shall take account of what my noble friend said, I must ask the Committee to resist the amendment.

The Duke of Atholl

I feel bound to withdraw the amendment because my noble friend said he would take account of what I had said. I believe that if he now refers the matter to the Nature Conservancy Council in Scotland he will find that they are not averse to putting the Scottish primrose in Schedule 7, and I put it no higher than that. I shall probably return to this subject on Report, because I think the Minister will find, when he has taken the most recent soundings, that there has been a considerable decrease in the numbers of this plant in the north of Scotland, in Sutherland and Caithness, and that it may need protection so far as the mainland of Scotland is concerned, although, as I said, I agree that it is still fairly common in Orkney. With those observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.20 p.m.

Lord Beaumont of Whitley moved Amendment No. 200:

Page 51, line 30, at end insert—

("Alison, Small	Alyssum, Alyssoides
Broomrape, Bedstraw	Orobanche, Caryophyllacea
Broomrape, Oxtongue	Orobanche, Loricata
Broomrape, Thistle	Orobanche, Reticulata
Club-rush, Triangular	Scirpus, Triquetrus
Cow-wheat, Field	Melampyrum, Arvense
Cudweed, Jersey	Gnaphalium, Luteoalbum
Galingale, Brown	Cyperus, Fuscus
Hares'-ear, Sickle-leaved	Bupleurum, Falcatum
Hares'-ear, Small	Bupleurum, Baldense
Knotgrass, Sea	Polygonum, Maritimum
Lettuce, Least	Lactuca, Saligna
Leek, Round-headed	Allium, Sphaerocephalon
Marsh-mallow, Rough	Althaea, Hirsuta
Pear, Plymouth	Pyrus, Cordata
Pink, Childing	Petrorhagia, Nanteuilii
Sandwort, Norwegian	Arcnaria, Norvegica
Solomon's-seal, Whorled	Polygonatum, Verticillatum
Spurge, Purple	Euphorbia, Peplis
Violet, Fen	Viola, Persicifolia
Water-plantain, Ribbon leaved	Alisma, Gramineum
Wood-sedge, Starved	Carex, Depauperata
Wormwood, Field	Artemisia, Campestris
Yellow-rattle, Greater	Rhinanthus, Serotinus ").

The noble Lord said: I am now back on old, familiar ground. I had the great pleasure of piloting through your Lordships' House the Wild Plants Bill 10 years ago, which eventually, under the care of the noble Lord, Lord Skelmersdale, saw light as the Wild Creatures and Wild Plants Act, and which contained much of that original Bill. That Act enabled the special protection of a wild plant if it had become so rare that its status as a British plant was endangered by any action designated as an offence under the Act.

The Wildlife and Countryside Bill extends special protection, not only to endangered plants but to vulnerable ones as well. Clause 20 allows the Secretary of State, on representation by the Nature Conservancy Council, to add a plant which in his opinion is in danger of extinction in Great Britain. This is the definition of "endangered" used by the International Union for the Conservation of Nature. It also allows the Secretary of State to add a plant which is likely to become so endangered, and that is the definition of "vulnerable" used by the International Union for the Conservation of Nature. This latter phrase—the plant which is likely to become so endangered unless conservation measures are taken—is to be welcomed, as the 1975 Act was limited to allowing only those species which are threatened primarily by collecting to be added to the schedule.

It is interesting to see how far we have moved on in public opinion: then, we thought it not diplomatic to add vulnerable plants to the lists in case it should endanger the whole Act, but now the Government have, I am delighted to say, accepted the principle. However, habitat loss may be the main reason and collecting only a secondary one. Collecting becomes a contributory factor as species decline, become rare and, as I was saying about an animal earlier on, people want to grab it before it disappears. A plant in this situation can now be added to the schedule. The list of the species in the 1975 Act was compiled from the best information available at the time, but before the publication of the British Red Data book on vascular plants. A new edition of this important bible of plant status is in preparation, and the up-to-date information used for this new edition, although not yet published, has been available in compiling this list.

The plants added to the schedule by the Government—those are the plants which will be found already in Schedule 7 and included in the printed Bill—are of mixed status. Some of them are vulnerable, some of them are endangered, and there are several of both. But it is a strange list because while it accepts vulnerable species to the schedule, it does not accept all the endangered species which are identified in the Red Data book; and at the stage where the Government have accepted the fact that it is necessary to protect species before they are on the verge of extinction, vulnerable, it would seem unreasonable not at least to include all the plants recognised as endangered. Probably further work is needed before other vulnerable plants are added. That may be necessary, but it is something which can be done afterwards. Surely, however, at this stage all endangered plants should he added.

The amendment which stands in my name and in the name of the noble Baroness, Lady David, brings about this rationalisation. It includes all the remaining endangered plants now included in the Red Data book except for arable weeds and obvious aliens. The list of the species in the amendment has been discussed with the Botanical Society of the British Isles and the National Conservancy Council, as well as the Society for the Promotion of Nature Conservation. I understand that the NCC are happy to support their addition. I beg to move.

Lord Cullen of Ashbourne

Schedule 7 is based on advice from the Nature Conservancy Council given to the Secretary of State and required by Section 12 of the Conservation of Wild Creatures and Wild Plants Act 1975. The NCC provided this advice in July. Since then they have had further information about the distribution or scarcity of the plants which are the subject of this amendment. It is their view that these plants are equally deserving of protection. I am happy to accept the Nature Conservancy Council's advice.

Unfortunately, so far as the amendment is concerned, the items are listed in alphabetical order beginning with "A", and the amendment would insert them after the "Ws" in Schedule 7, as drafted. I am afraid that the items listed in the amendment will have to be properly integrated with the items in the existing schedule if the reader is not to be misled. Accordingly, I undertake to put down a suitable Government amendment at a later stage. I trust that in the light of this undertaking the noble Lord will see fit to withdraw his amendment.

Baroness David

As my name, too, is put to this amendment, may I say how grateful I am that it has been accepted. I quite understand that it will have to be put in the right order. May I ask that the three commas in the Latin names be removed and that the spelling of "artermisia" be corrected?

Lord Cullen of Ashbourne

No doubt that will be attended to.

Lord Beaumont of Whitley

I am grateful to the Government for accepting this amendment and very happy to leave to them the business of working out in what alphabetical order this list should appear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

May I at this stage, without taking up too much of your Lordships' time, reiterate something that I said when we came back after the dinner adjournment? I think that the House at that moment—whether we were unduly punctual or not—was not very full. I did make a special plea that, as we had arranged to stop at a definite time rather than at a definite place in the Bill, we could proceed with some speed. I know that since then there have been some matters over which people feel very strongly and which have been debated very fully; but I wonder whether I could repeat that we have approximately two hours more available tonight and I should be most grateful if we could do as much as possible in that time.

Lord Donaldson of Kingsbridge

On this side, we have hardly opened our mouths since dinner.

Lord Denham

I assure the noble Lord, Lord Donaldson, that I was not casting stones in any direction.

Schedule 7 agreed to.

Clause 13 [Introduction of new species etc.]:

[Amendments Nos. 201 and 202 not moved.]

10.28 p.m.

Lord Melchett moved Amendment No. 203: Page 13, line 31, at end insert ("imports with the intention of releasing or allowing to escape, or").

The noble Lord said: In this clause we come to the restrictions on introducing new species. This particular part of the clause deals with the introduction of wild animals which in the wild state are not ordinarily resident in or regular visitors to Great Britain. The purpose of my amendment is to try to make this part of the clause at least look as if it might work. At the moment it seems to me that the clause as drafted in the Bill strikes at the problem well after the damage has been done and much too late in the day. I realise that the problem with having the sort of restriction on imports that I have drafted is that at the time of import it is difficult to know what the person's intention is; but the fact is that a great deal of the legislation we have for protecting wildlife in this country is very difficult to enforce. Even some of the things which one might think would be relatively easy to enforce (like the restrictions on poison which we discussed earlier this evening) are difficult in practice to enforce. One of the things we looked at—and we will be coming to an amendment on this later—when this House passed the Conservation of Wild Creatures and Wild Plants Act, was the importance that these types of legal provisions have in the sense of being declaratory or educational. That is why that Act has a provision which is repeated in the Bill about giving information to young people about what the provisions of the Act contain. It is in that spirit that I should like the Government to consider this amendment. When this problem of the introduction of the new species was originally considered by the Nature Conservancy Council, my understanding was that they would have liked to see some prohibition on import. Once the species which are going to cause havoc to our native fauna have got into the country it is a bit late to start saying, "Careful that does not get out", or, "If you let it out we are going to fine you £50 or take you to the magistrates' court".

Where one wants to have some control on things which are going to be a pest, a menace or highly destructive to agriculture, forestry or native flora or fauna is at the point when they enter the country. The difficulty with that, as I understand it, and the reason why it is not in the Bill at the moment—and the noble Lord will no doubt enlighten me on this—is because people think that it will be difficult to enforce. I accept that. But nevertheless it seems to me important that we should make clear in this Bill—and the Act when it becomes law—that what we want is for people not to import into this country species of animals which will be highly destructive to our native flora or fauna or to agriculture, forestry or other commercial interests. It is really that part of the problem to which my amendment is directed. I hope that, notwithstanding the difficulties of enforcement, something of this sort can be included in the Bill.

Lord Cullen of Ashbourne

The noble Lord, Lord Melchett, has more or less answered his point for me. The great difficulty is the fact that if somebody imports something, unless they actually make a confession that they are importing it for a particular reason, you simply do not know why they are importing it. In our view, the amendment would add nothing to the existing provisions of Clause 13 because the intention to release or allow an escape could not be proved without a confession, which is unlikely to be forthcoming, or unless a release or an escape has actually taken place, in which case the provisions of Clause 13 as currently drafted would apply.

Lord Avebury

Do we not manage to enforce prohibitions on the import of dogs and cats, and are not people sometimes prosecuted for bringing them in unlawfully?

Lord Cullen of Ashbourne

That is quite true, yes.

Lord Melchett

If I might help the noble Lord a little, I tried to answer the point because I know the argument against the amendment. I do not think the case is quite so bad as the noble Lord is making out. There has recently been a campaign launched to reintroduce the beaver into this country. It seems to me not likely, knowing some of those who have been interested in this, but in theory it is possible that somebody might take it into their heads that this was a very good idea and they would get hold of some beavers and say, "I am going to bring them into the country and release them". They would not make any secret of it. At the moment under the Bill we would not be able to do anything about that until after the beavers had been imported.

It would seem good sense and reasonable to make it an offence actually to import under those conditions. Also it seems to me quite possible, even if somebody did not confess, that the situation might become apparent after somebody had imported something and was keeping it in a zoo or in a private collection quite legitimately. Some documentary evidence might come to light which showed that the motive for the import was not to keep it in their private collection but ultimately to release it, to the great damage of agriculture, forestry or some other interest. In those circumstances, this kind of prohibition would be useful.

I know the arguments against it, but it seems to me that there is quite a lot to be said in its favour. I wonder whether, in the light of what has been said, it would be possible for the noble Lord to take this away and have another look at it.

Lord Cullen of Ashbourne

I should like to complete what I was going to say before the noble Lord, Lord Avebury, intervened. In so far as the intention of the amendment is to set up a system of import control and make it an offence to import certain animals, it should be pointed out that that system would be very costly to set up and run. We do not see a need to control importation as such. Many of the animals concerned would be perfectly acceptable so long as they remained in captivity. However, I have absolute sympathy for what the noble Lord is trying to get at. I see the point. I think there are difficulties, but we are certainly prepared to consider this matter, though without any commitment of any sort.

Lord Melchett

I accept that. I do not think that the argument about cost is a good one, if I may say so, because as I understand it all live animals that are imported into this country would in any event be subject to such stringent checks. I think, for instance, of birds which would be so checked, because of the danger of importing various diseases involving domestic poultry and so on. It would be necessary to check the kind of animals we are talking about—non-native animals—because of the provisions of the Endangered Species Act. We shall be coming on to that and the question of the need for better enforcement as well as the hope that there will be restricted ports of entry for such creatures. But it does not seem to me that any additional checks, more bureaucracy, or extra manpower would be needed at ports of entry in relation to live animals. Non-native species coming into this country ought anyhow to be very carefully scrutinised and checked. The noble Lord has said that he will look at this matter without commitment. I would not ask for anything more at this stage, and in the light of that assurance I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.37 p.m.

Baroness David moved Amendment No. 204: Page 13, line 38, after ("person") insert ("imports,").

The noble Baroness said: I should like to speak to Amendments Nos. 204 and 206, and at the same time I wish to comment on the amendment of the noble Lord, Lord Craigton, No. 205, and the amendment of my noble friend Lord Kilbracken, No. 207. As drafted the Bill seems to us to go too far in attempting to introduce consistency between the regulations for plants and those for animals. The natural and accidental escape of a plant seed over a garden hedge is of a wholly different category from the deliberate release of a mink or coypu; and in general an introduced plant is likely to do infinitely less damage than an introduced animal. For those reasons, and because enforcement is virtually impossible, we join with our noble friend Lord Kilbracken in supporting the deletion of this provision; that is, lines 40 and 41 on page 13.

Because, however, there may later be occasions when it would be desirable specifically to prohibit the introduction of certain plants, we are anxious to retain the reference to Schedule 8. At present that schedule contains no flowering plants, but only a seaweed, the notorious "japweed", Sargassum. It may well be that some flowering plants, for example, the giant hogweed, will be found to be as great a pest as the seaweed. They can then be added to the schedule, which will automatically prohibit their introduction, and, if our amendment to line 38 is accepted, their importation. For that reason we would not go along with the amendment of our noble friend Lord Kilbracken relating to subsection (1)(b).

With regard to the amendment of the noble Lord, Lord Craigton, we are worried about the question of the provision being enforceable. We think that his amendment would make enforcement more difficult because in a way it strengthens the clause. We think that his amendment would make the matter even more difficult and therefore more unrealistic. I beg to move.

Lord Cullen of Ashbourne

Dealing with Amendment No. 204, I would say that we consider that there are not adequate reasons to justify import controls in relation to plants. They would involve considerable expense, and, because of the difficulty of detecting the seeds and cuttings, they would be very difficult, if not impossible, to enforce effectively. There would have to be extremely strong reasons to support the introduction of such controls, and we are not at the moment convinced of the need. I may say that Kew Gardens agrees with us, so I hope that the noble Baroness will not press the amendment.

Baroness David

I wonder whether the noble Lord would go on and answer the other amendments so that I could reply to them all together.

Lord Craigton

I have not moved my amendment yet.

Lord Cullen of Ashbourne

The controls over the introduction of plants into the wild which are contained in the Bill should apply to all non-native varieties as well as to certain plants which have become established. The Government consider that the introduction of any new species into the wild needs to be justified. British wildlife has not suffered much to date as the result of floral introductions but our good fortune cannot be guaranteed in the future without controls, and Clause 13(2)(a) is intended to prevent problems occurring as a result of introductions. The proposed amendment would remove the blanket coverage of the introduction of new plants. It would not be practicable to extend Schedule 8 so as to list all those species whose introduction ought to be controlled. I hope that satisfies the noble Baroness and that she will not press her amendment.

Lord Avebury

If the noble Lord thinks it is going to be difficult to control the import of cuttings or seeds, how does he propose to enforce this provision—when persons might be scattering these seeds or planting these cuttings anywhere throughout the country? Is he going to have an army of inspectors operating throughout the National Trust lands and all public open spaces, to make sure that people are not planting seeds brought in from Sardinia or Corsica?

Lord Cullen of Ashbourne

There would be absolutely no way of doing that.

Baroness David

Therefore it seems to me that this is a very difficult clause to operate. I quite appreciate the difficulty about catching the imports as they come in. The whole problem about this part of the clause is how to define precisely enough the terms of this subsection to allow it to be enforced. How do you define a plant of a kind which does not ordinarily grow in Great Britain in a wild state? The snowdrop has been with us for at least 300 years, but most botanists would say that it was an introduced and not a native plant. The same is true of many of our trees, such as the sycamore and the horse chesnut. Even if these were allowed honorary British citizenship, one still has to decide how many times an alien plant has to be found and in what habitats before it can be said to be ordinarily growing here.

Then what of the phrase "in the wild" which is used in subsection (2)? As I said on Second Reading, a large proportion of this country has at one time or other and to some extent been cultivated. When is it wild and when is it not wild? At what point do motorway verges, which are rapidly becoming one of our most valuable wildlife habitats, graduate into being "wild"? At what point can reclaimed tips and dumps be said to revert to the wild? The com plications are endless. Motorway cuttings are first sprayed in a mass production operation with seed mixtures containing many plants which are not native to Britain. When they are sown they are not wild and all is in order. But what is the situation when these plants seed themselves beyond the boundary of the motorway? Is the highway authority guilty of an offence in allowing them to do so?

The tree lupin, which is not native to Britain, has proved invaluable in the reclamation of china clay tips, but it is a prolific seeder and rapidly colonises the ground beyond the tips. Is its use to be banned because of this? Will those of your Lordships who continue to allow the common rhododendron to escape out of your policies be liable to prosecution? And what of those who plant gaultheria for their pheasants in what is at least semi-natural woodland? We are urged to replace our vanished elms with Japanese elms—a tree of whose performance, under our conditions, next to nothing is yet known. Will that be legal or illegal? In the face of all these queries the Government, if they are to insist on banning introduced plants, really must make the position clearer.

Lord Kilbracken

Before the Minister replies, I wonder whether I may ask my noble friend a question. I should like to concentrate first on Amendment No. 203, which has to be considered, among other things, together with Amendment No. 206, to leave out lines 40 and 41. If that is done, it seems to me that we are left with a rather curious subsection (2), which would read: Subject to the provisions of this Part, if any person imports, plants or otherwise causes to grow in the wild any plant which— (b) is included in Part II of Schedule 8, he shall be guilty of an offence", and in Part II of Schedule 8 we have only the Japanese seaweed.

Baroness David

If I may answer, I think I said that this was a precaution. We have only one plant in it at the moment, but there might suddenly develop other plants. I think I mentioned the giant hogweed, which could become a pest and could be added to Schedule 8. So it is a valuable precaution to have Schedule 8 there in case.

Lord Cullen of Ashbourne

I quite see the difficulty. It is very difficult to give a definition of what is "wild" and of which plants are "in the wild". On the other hand, it is something which has been used in a number of other Bills and is really understood by everybody. It is just jolly difficult to put it into words. I think the noble Baroness knows what "in the wild" means as well as I do. We have had legal advice on this, because the noble Baroness very kindly told us that she would raise this point. Perhaps I may just read out what it says: The legal advice is that the concept is one which everyone understands but which is difficult, if not impossible, to define satisfactorily, and that it should be left to the court to decide".

Baroness David

I think that is very weak law. If we are making a law like that, it is very weak indeed.

Lord Avebury

If the noble Baroness was going to pursue this at Report stage, what would be a more convenient way of arranging it would be not to have the single plant, to which the section would then be applicable, contained in Part II of Schedule 8, but to give the Secretary of State an order-making power so that he could add any plant which might become a threat in the future, without the necessity of amending legislation.

Baroness David

I think he has that power.

Lord Cullen of Ashbourne

There is such a power in the Bill.

Baroness David

I should like to look at this again. I feel that we are in rather a hurried state tonight, and I should not like to withdraw the amendment without saying that I shall reserve the right to come back on Report, if I think that proper. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.48 p.m.

Lord Craigton moved Amendment No. 205:

Page 13, line 39, leave out ("causes to grow in the wild any plant") and insert ("by his unreasonable inaction permits or causes the growth in the wild of any plant").

The noble Lord said: The way I should like to see this clause worded is: …if any person plants or otherwise by his unreasonable inaction permits or causes the growth in the wild of any plant".

Because of the way the clause is drafted, if Japanese seaweed appears in my little patch of water I need do nothing at all about it, except that I must not plant it. I believe that it should be an offence to stand idly by and watch it grow. That is all my amendment suggests. I beg to move.

Lord Renton

I should like to support my noble friend in this amendment. We have the classic and terrible case of the so-called Siberian wallflower which, I believe, was brought to a London suburban garden just over 100 years ago and has spread throughout Great Britain. It is now the most appalling pest and weed, which spreads so easily. The person who brought it in would not, I think, have been liable under this clause as it now stands, and it should be strengthened.

Lord Kilbracken

It is a very difficult part of the Bill to understand. In the next amendment we come to the question of lines 40 and 41. I simply do not understand why there should be a ban on the growing in the wild of all plants—there may be exceptions—which do not ordinarily grow in Great Britain in a wild state. I am sure that we shall have examples of this when the next amendment is moved, but what the noble Lord, Lord Craigton, is saying is that not by our unreasonable inaction must we permit or cause the growth in the wild of any plant. We may not plant it. Presumably the seed can be sown, which is an action rather than inaction, but we must not permit it by our unreasonable inaction. I do not understand what the noble Lord is getting at.

Lord Craigton

The phrase, as worded, is "if any person plants or otherwise causes to grow in the wild." I have used exactly the same words: "causes the growth in the wild". I can see no difference. It is the allowing of it, by his unreasonable inaction, to go on growing.

Lord Cullen of Ashbourne

I am not sure that the noble Lord is doing exactly what he means to do by the amendment. If he removes the words "causes to grow in the wild any plant" and replaces them by his amendment, anybody can take action without trouble, but they are in difficulty with inaction. I think that is what the noble Lord opposite was saying. We have sympathy with the idea, but it is a very difficult one to enforce. Anybody who sees Japanese seaweed somewhere should get their gumboots on and deal with it as quickly as possible. But I do not think you can force anyone to do so. It is for that reason that we do not agree with the noble Lord's amendment.

Lord Craigton

Can I not persuade the noble Lord to have a look at it? I agree that my drafting may be faulty. It is a very tricky point, but am Ito stand idly by and watch this happen? Can I not be rapped over the knuckles?

Lord Cullen of Ashbourne

I think it is a marvellous example, but I do not think anybody can force you to do so. And many people would not know what Japanese seaweed was if they saw it.

The Earl of Cork and Orrery

Can I help my noble friend by suggesting a possible transposition in the drafting so that it reads: "a person who causes, or by his unreasonable inaction permits"? Would that solve the problem?

Lord Cullen of Ashbourne

We will look at it again, but "unreasonable inaction" is a pretty vague expression. The amendment would need a good deal of tidying up.

Lord Renton

The operative word is "permits". If that could be introduced into the clause it would strengthen it.

Lord Craigton

I am very grateful to my noble friend for what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David had given notice of her intention to move Amendment No. 206: Page 13, leave out lines 40 and 41.

The noble Baroness said: I have spoken to Amendment No. 206. I do not move it, but make the proviso that I might come back to it at Report.

[Amendment No. 206 not moved.]

Lord Kilbracken moved Amendment No. 207: Page 14, line 2, leave out ("or (2)").

The noble Lord said: This amendment, to leave out "or (2)" in line 14, would not wholly have been consequential upon Amendment No. 206. Subsection (37) says that

"it shall be a defence to a charge of committing an offence under subsection (1) or (2) to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence".

The offence that we have is to grow in the wild certain types of plant. My point is simply that I do not see how it is possible unintentionally to cause a plant to grow. One can unintentionally release an animal but I suggest one cannot unintentionally cause a plant to grow. There are no reasonable steps to take or there is no due diligence that one ought to show to avoid the growing of a plant, and therefore that subsection should only relate to subsection (1) and not to subsection (2). I beg to move.

Lord Cullen of Ashbourne

I do not think I can help the noble Lord in this particular matter. It may, on the face of it, seem strange for anyone who has deliberately planted a non-native plant in the wild, or otherwise caused it to grow there, to claim that he had exercised all due diligence. However, it is possible to imagine circumstances in which someone causes a non-native plant to grow in the wild in the reasonable belief that it is an unexceptional native plant—for example, as the consequence of being wrongly advised by an expert, or because he has ordered seeds or plants and has been supplied in error with a proscribed variety. We do not think it equitable that, in such circumstances, a person should be guilty of an offence.

Lord Kilbracken

I think that is rather a curious explanation, but I should like to think about it and in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.57 p.m.

Baroness David moved Amendment No. 208: Page 14, line 12, at end insert (", except that a person shall not be entitled to this defence if the other person was at the material time his servant.").

The noble Baroness said: The principle of responsibility for illegal action taken by others was discussed when the noble Lord, Lord Beaumont of Whitley (who I see has now gone), moved Amendment No. 59 last week. I said then that we have a slightly stronger amendment dealing with this later in the Bill, but I think I should now say that the two situations—the one he dealt with and the one I am now dealing with—are not quite the same. We consider that an employer should be entirely responsible for what his employee does on his land, whether it be a market garden or a zoo, and that he should make it perfectly clear what the law is and that he expects it to be observed. We are not saying that the landowner or market gardener would try to put the blame on his servant; what we want to do is to establish firmly on the landowner the responsibility for what goes on on his land. As I said last week, other Acts of Parliament like the Health and Safety at Work Act put the responsibility firmly on the employer, and what we want to have is a better chance of the law being observed and being enforceable. I beg to move.

Lord Cullen of Ashbourne

We do not accept this amendment. It is clearly designed to prevent an employer relying on the "due diligence" defence in Clause 13(3) in a case where an offence is committed by his servant. It ought not to follow that because a servant has committed an offence his employer is automatically at fault. I am not satisfied in the present case that it would be right to prevent an employer relying on the "due diligence" defence in cases where he has not personally committed an offence. I think it is against British justice, and I ask the noble Baroness to withdraw the amendment.

Lord Avebury

For once I should like to agree with the Minister, and in doing so make it clear to the noble Baroness, Lady David, that my noble friend Lord Beaumont has not left but is merely outside the Chamber for a moment consulting on some of his later amendments. If he were here I think he would probably want to say that the employer should not be held responsible in an unlimited way, such as the noble Baroness is proposing, for the acts of his servant.

One can envisage all sorts of ways in which an employee might do things for which it would be totally unreasonable to hold the employer responsible. For example, if an employee, without telling his employer, plants some of the plants covered by the schedule, or plants which do not normally grow in the wild, he might on his own initiative take steps to see that such plants bloomed on the employer's land for reasons of his own which had nothing to do with the terms and conditions of his employment. Or certainly he might have done that without any instructions from the employer; the employer might even have given direct instructions that he should abide by the terms of this clause, although it is difficult to imagine that all landowners as soon as this Bill reaches the statute book will immediately issue a notice to their employees saying they are to abide by the terms of this clause and not bring in wild plants of any kind. I think it would be unreasonable to expect landowners to do that. But if the act of the servant is one done without the knowledge of the employer and not in accordance with his instructions, I do think that in all fairness it should be a defence for him to prove that he has not given instructions and the employee has acted without his knowledge.

Viscount Massereene and Ferrard

I should like to support the noble Lord, Lord Avebury. Employers have a very bad time these days, what with the Protection of Employment Act and various other Acts. You may give your employees instructions but you cannot ensure that they are carried out. I think it would be very unfair on employers to have this amendment carried.

Lord Melchett

I listened very carefully to what the noble Lord, Lord Avebury, said and it did not seem to me that what he was proposing was what the Bill is proposing. I find it very difficult to see how subsections (3) and (4) fit together, but, as I understand it, under subsection (3) you have to show that you took all reasonable steps and exercised all due diligence to avoid committing the offence. But then, under subsection (4), so long as the offence is committed by somebody else you do not have to show due diligence or take all reasonable steps; that provides a complete defence. That was not what Lord Avebury was suggesting. It does seem to me that there should be some duty on an employer to take reasonable steps and exercise due diligence to ensure not only that he does not commit the offence but also that his employee does not. That does not seem to me unreasonable. It may not be exactly what our amendment would achieve, but nevertheless it seems to me to be a reasonable point.

After all, if we are talking about somebody who has brought an animal into this country which is liable to do maybe millions of pounds-worth of damage, and might be an enormous threat to agriculture, forestry or other interests, and he keeps the animal in premises where he employs somebody to look after it, it does seem reasonable for that employer to have some fairly high standards of care and responsibility placed on him, and he should not simply be able to say, "Well, I had somebody looking after it; it is nothing to do with me; that is a complete defence. Goodbye". He was responsible for bringing the animal or plant into the country. I do not think it is good enough for him to be able to say, "My servant was responsible for it getting out and doing all this damage, and that is me out of it, lads!" It may be that our amendment does not meet that point, but I do not think the Bill is anything like the noble Lord, Lord Avebury, suggested it was.

Lord Donaldson of Kingsbridge

I think it is an awful pity that we have no lawyer here. There must be hundreds of cases making this clear in English law; it must have happened again and again.

The Earl of Onslow

I have a strong suspicion that, if somebody employs someone to look after an animal and the animal escapes and causes considerable damage, he is liable in civil law for damage done by his servant.

Baroness David

Clearly, we are not all satisfied with subsections (3) and (4). I wonder whether the Minister would be willing to look at those two subsections again in the light of our amendment, and perhaps we could come back to the matter later? If so, I shall withdraw the amendment.

Lord Cullen of Ashbourne

I am afraid that I am not prepared to do that. I do not agree with the amendment at all. I think that the idea of pinning on the employer something which has been done by his employee—unless it can be proved that there was some collusion between the two—is not a correct procedure, and I would not accept the amendment.

Lord Avebury

I think that I have read subsections (3) and (4) fairly carefully, although I am not a lawyer but only a humble engineer. The beginning of subsection (4) reads: Where the defence provided by subsection (3) involves an allegation and so on. So we are postulating the case where a charge is brought against an employer or landowner for having committed an offence under subsections (1) or (2), and the employer then says: "I did not plant this object", or, "I did not bring this animal into this country and allow it to take its domicile on my land. I have found that it was, in fact, an employee of mine who did this." Then the subsection goes on to say that if the employer says that to the court he must, within a period of seven days, have given information to the prosecutor which will assist him in identifying the employee or servant in question.

So, the employer is not relieved of the obligation of taking all reasonable steps and exercising due diligence, as has already been provided in subsection (3)—he is, in fact, using that as the defence—but there is laid upon him an additional obligation of providing this information to the prosecutor as well as having to establish before the court that he has exercised proper care and due diligence.

Lord Melchett

I do not think that we ought to spend too long on this matter. I find the interpretation by the noble Lord, Lord Avebury, of the Bill entirely acceptable. I wonder whether to shorten the matter we could simply ask the Government, when Hansard is printed, to look at what the noble Lord, Lord Ave-bury, has said, and to write us a brief letter confirming that that is the correct interpretation, or, if not, telling us how their interpretation differs, and then we can come back to the matter if we need to do so?

Lord Cullen of Ashbourne

I am very happy to do that.

Baroness David

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 13 shall stand part of the Bill?

11.7 p.m.

Lord Stanley of Alderley

I should like to raise two small points. First, I note that the penalty under Clause 19 for contravening this part of the Bill could be a two-year prison sentence. I wonder whether that is in fact appropriate, and whether my noble friend will look at the matter and perhaps let me know the Government's reason for such a penalty. If he cannot do so now, perhaps he will do so at the Report stage.

The other point, which perhaps has been covered and I have failed to grasp, is whether my noble friend can tell me whether there is anything in the Bill that could control, and indeed stop for that matter, anyone introducing indigenous species, particularly pests, into an area of the country in which they are non-existent. I can give two examples. The first example is putting rabbits into, say, the north of Scotland where they have almost died out; and the other example—and this happened twice about 10 or 15 years ago—is introducing foxes into Anglesey and, indeed, greylag geese. Maybe there is not an answer to that last question, but perhaps there is an answer to my first question.

Lord Middleton

In supporting what my noble friend Lord Stanley of Alderley has just said as regards penalties, I must admit that from time to time I become consumed with fury and exasperation at the sight of young sycamores and beeches stripped of their bark and killed by grey squirrels. When I make plans to replant these areas of hard woods that I thought I had got nicely established after 10 and very often 20 years, there are times when I feel that the appropriate penalty for the introducer of grey squirrels from America—his name escapes me for the moment, but if he was the grandfather of one of my noble friends I apologise—would have been hanging, followed by drawing and then quartering!

This is the kind of danger that arises from a pest species and the kind of damage envisaged in Clause 13. But however exasperating, however damaging it may be, and however much one would like to prevent this type of introduction of an alien species and all the consequences that can ensue, is this the kind of offence where imprisonment is appropriate? Our prisons are seriously overcrowded and they have been for years. Magistrates and judges are being urged to use alternatives to prison when there is no need to lock up the offender for the protection of the public. I think that I am right in saying that an offence under Clause 13 would be a new offence carrying imprisonment and I, too, wonder whether heavy fining in bad cases would not be a sufficient deterrent. Perhaps the Government might think about that.

Lord Melchett

I do not want to prolong this debate, but bearing in mind the injunction of the noble Lord the Chief Whip to us, we have a number of amendments on Clause 19 which deal with the level of penalties, so would it not be simpler to deal with this matter then?

Lord Middleton

I have made the point; I do not intend to raise it again on Clause 19.

Lord Cullen of Ashbourne

I shall be happy to write to my noble friend, and therefore perhaps we could move on.

Clause 13 agreed to.

[Amendment No. 209 not moved.]

Schedule 8 [Animals and plants to which Section 13 applies which are established in the wild]:

11.12 p.m.

The Duke of Atholl moved Amendment No. 210: Page 51, leave out lines 40 and 41.

The noble Duke said: We now move on to the schedule which goes with Clause 13 and lists those animals which, although they exist in this country, cannot be released into the wild. Animals are taken in the broadest sense of the word in that most of the species listed are, in fact, birds, but that does not matter.

I hope that it will be for the convenience of the Committee if I move Amendment No. 210 and speak to Amendments Nos. 211, 213, 215, 218, 220, 221, 222 and 224, which are all amendments to this schedule. I do not propose to move those amendments down in my name—and I think that one is in the name of my noble friend Lord Cranbrook—unless any noble Lord indicates now that he wishes to speak about a particular species. However, I have tabled the amendments to try to clarify the rationale behind the choice of animals included in Schedule 8.

Some of the animals, such as the American mink, the black rat and the grey squirrel, are clearly pests and, therefore, I think that we would all deplore the intro duction of any further species of these animals into the wild. But other species, such as the budgerigar—and here I come particularly to Amendment No. 210—appear to be totally harmless; indeed, there are homing budgerigars which —, personally, regard as a rather attractive feature of many gardens. These budgerigars fly more or less at will around the gardens. I imagine that if we continue to have homing budgerigars, once the Bill becomes law we shall be breaking the law because I can see no way in which exceptions to this clause, Clause 13, can come under the licensing provisions of Clause 15. Therefore, I would very much hope that the budgerigar in particular would be taken out of this schedule.

I also think that this schedule is unsuitable for the capercaillie. Capercaillies are very difficult to rear in captivity. I have tried. I tried to rear some for the Game Fair when it was last in Scotland and totally failed. I wish very good luck to people who can rear them in captivity. Having reared them in captivity, you obviously want to release them into the wild to try to increase the number of capercaillie in the wild. I agree that the Forestry Commission does not like capercaillie, and I suspect that that is the reason why capercaillie are in this schedule.

But, personally, I think that a little damage to woods is well worth while when you see a bird as magnificent as the cock capercaillie in flight. I would ask my noble friends to give the rationale behind this schedule and whether they would, in particular, consider removing the budgerigar from it. I beg to move.

Lord Cullen of Ashbourne

When moving that Clause 13 stand part of the Bill, it seemed that Schedule 8 included creatures, such as the coypu, of which we certainly should not wish further releases into the wild. Your Lordships have clearly realised that, as well as containing such undesirables as the coypu, mink and grey squirrel, Schedule 8 also included others which many of us regard as having enriched our natural fauna—the capercaillie, ruddy duck and Lady Amherst's pheasant, for example. What possible harm can follow the release of further specimens of these species? Let us take the ruddy duck. With your Lordships' permission, I should like to quote from Sir Peter Scott: Having been carelessly responsible myself for allowing the North American ruddy duck to escape and build up to what seems to be a small but viable population in England, I am in no position to pass judgement on others. To be sure the ruddy duck is decorative and apparently harmless but no one can know the insidious effect it may have on the ecological web ". In framing Clause 13 and Schedule 8 our basic principle has been that no introduction of an exotic species, or reintroduction of a formerly native species into the wild, should take place without proper consideration of the ecological implications, and that there should be provision for monitoring any introduction which may be effected. Clause 13(1)(a) deals with species of animals not presently found in Britain, and Clause 13(1)(b) and Schedule 8 deal with already introduced and reintroduced species whose further spread the Government wish to control and monitor.

We are not aware of any benefits of introducing budgerigars into the wild which would justify a breach of this fundamental principle and the exemption of budgerigars from the controls proposed. Budgerigars have shown themselves to be capable of nesting and forming colonies in the wild. We recognise that past introductions of budgerigars into the wild have not resulted in serious disruptions of existing ecosystems and that large numbers have escaped without maintaining long-term viable populations; and this in itself brings another dimension into our thinking. Should we not have some regard to the effect on the introduced species? Both grounds—the effect on the ecology and the effect on the species—justify controls and both would be taken into account in considering applications for licences to release.

The case of the capercaillie is rather different from that of the budgerigar. As the noble Duke, the Duke of Atholl, will know, the capercaillie is unique in being the only successful reintroduction to Britain by man of a species in the British fauna. I appreciate that some noble Lords may have difficulty in understanding why the Government should wish to include the capercaillie in Schedule 8. The reason is that we arc concerned about the effects of introducing capercaillie into areas outside their present range because of the damage they can cause to the trees on whose buds and young shoots they feed. We take the view that further introductions of these birds should be carried out only under licence in suitable areas. I find it difficult to speak to the noble Duke, who has so much greater knowledge than I on these points, but that is the Government's view, which I hope the noble Duke will accept.

The Duke of Atholl

May I ask my noble friend one question? Under what clause of the Bill does the licensing system come? It does not seem to come under Clause 15. Clause 15(1) says that Sections 1 to 8 do not apply; 15(2) says Sections 9 to 12, and 15(3) says, Section 13 does not apply to anything done under and in accordance with the terms of a licence granted by the appropriate authority". This presumably is the NCC.

Lord Cullen of Ashbourne

I thought it did come under Clause 15.

The Duke of Atholl

The noble Lord is quite right. It does come under Clause 15.

Lord Melchett

The Government are talking more about the general principle than the particular species to which reference has been made, and they are right to adopt that attitude. The noble Lord, Lord Middleton, spoke of the damage grey squirrels do to young trees, and that must have been enough to remind us how important it is to be careful about the introduction of non-native species. Although the budgie and capercaillie may not appear to be enormous threats just now, it is worth remembering the story of the collared dove. Birds can change in their behaviour, distribution, breeding successes in certain climates and so on. Indeed, I understand that the starling, for example, became widespread only in the 18th century, prior to which it had an extremely limited and restricted range in this country. Then something happened, much as it did with the collared dove—which we do not understand very well, if at all—and then it became a bird with an enormously high population capable of doing damage.

Whether the budgie is likely to do that in view of the sort of winters we have in Britain, I do not know. But there have been other species which one would not expect to behave in that way, such as various parrots which have proved capable of breeding and living through very cold winters—a group of parrots have managed to do that in New York—and they can then become a considerable pest and a threat to native birds. I therefore support in general the approach the Government are adopting.

Viscount Ridley

I support my noble friend the Duke of Atholl in regard to the capercaillie, a magnificent bird which, as the Minister said, was previously a native bird which died out and was reintroduced, possibly by one of the noble Duke's ancestors. It has been very successfully reintroduced and is one of the most magnificent birds of our native fauna and many people may like to see it established in southern Scotland or northern England as the vast coniferous forests grow up. If it did become a pest it could easily be controlled, and I think it would be quite wrong to include it in the schedule.

Viscount Massereene and Ferrard

Why is the mandarin duck included here? It has been in this country a very long time and is a very beautiful duck. Its numbers have not increased and many people have it on their lakes. It flies around and is perfectly harmless and I cannot see why it should be included.

Lord Cullen of Ashbourne

We will be dealing with that on the next amendment.

Lord Renton

I, too, support my noble friend the Duke of Atholl because this schedule causes great difficulty. I think it is over-zealous and schizophrenic. On the one hand, it attempts to deal with known pests like the mink, coypu and so on, and on the other, it assumes that birds and animals which are not frequently found at the moment might become so. If the thinking underlining the schedule had been in operation some hundreds of years ago we would not have had the common pheasant introduced into this country, and probably not the red-legged partridge, either. I implore the Government to think again about the schedule, which I think would be unenforceable for the most part.

The Earl of Onslow

If my noble friend Lord Ridley wants to introduce on to his property in Northumberland the capercaillie from Perthshire, is that prosecutable, or is it prosecutable only if he introduces the capercaillie from Norway?

Lord Cullen of Ashbourne

The noble Lord is absolutely free to introduce capercaillie from wherever he likes so long as he can get a licence.

The Duke of Atholl

Before withdrawing the amendment, may I ask my noble friend to tell me the position about homing budgerigars? Many people keep them. They fly around their gardens and at night come into their cages, shut up to be kept safe from the foxes which have avoided the snares which no doubt have been set in those gardens. It seems that it will be difficult to keep these very attractive birds. Those who keep them are prepared to suffer a certain amount of damage to their fruit—come to think of it, I am not sure budgies eat fruit; they may be entirely insect eaters—and I cannot see how the Government intend to overcome this problem. As my noble friend Lord Renton said, the schedule is over-zealous in terms of many of the animals it includes. I should very much like the Government to reconsider it. Perhaps, if my noble friend could answer about horning budgerigars, I will then withdraw the amendment.

Lord Drumalbyn

May I ask a question about this? I must say that I find it desperately confusing. The rubric says, "Introduction of new species etc.". We are then faced with subsection (1) of the clause —and one is bound to look back to it—which says: … if any person releases or allows to escape into the wild any animal …". We are not talking about the capercaillie, which is in the wild and which I do not suppose could live otherwise than in the wild. I really do not know what we are talking about. If I understand this correctly, everybody would have to go around and shoot all the capercaillie in the country, because otherwise the law could not possibly be complied with. I wonder whether my noble friend, either now or at the next stage, would be prepared to tell your Lordships exactly what restrictions are required here, bearing in mind that the capercaillie is there and that it breeds in the wild. What is this about? I think there are many noble Lords who would be very sorry to see the capercaillie unduly restricted, and to keep it out of the wild seems to be a wholly undue restriction.

Lord Mowbray and Stourton

Before my noble friend responds to that, perhaps I may say that I agree absolutely with what my noble friend Lord Drumalbyn has said about the capercaillie, but I would be equally horrified if some noble Lord who had a grey squirrel farm were for some extraordinary reasons to go around distributing them further afield than they are already, although they are actually in the wild. So I do not think that the fact that something is in the wild already should stop us discouraging people from letting out more. I think the capercaillie is a case on its own.

Earl Waldergrave

May I add one other thing? Surely the words "allows to escape" are dangerous in regard to creating an offence. If you have your budgerigars in the house and you allow them to escape, who will ever prove that?

Lord Drumalbyn

We are at the moment, are we not, talking about two separate items? I think we shall get into trouble if we talk about the whole clause together.

Lord Cullen of Ashbourne

The budgerigar is not a wild bird, anyhow.

The Duke of Atholl

I am still not happy about the budgerigar, I must admit. I should like to give your Lordships a little further history about the capercaillie. It died out as a native species in this country in the middle of the 18th century. It was reintroduced by the then Lord Breadalbane at Taymouth Castle in 1828, and it has flourished to a greater or lesser degree, in that it has never needed another reintroduction, since 1828, I think. As far as I know, in that amount of time it may have done a little bit of damage but I feel that if it had had any really nasty tendencies they would have come out by now. After all, it has been here for over a century and a half.

I feel that to put birds such as capercaillie and budgerigars in this schedule is taking a very large hammer to crack a very small nut. I will withdraw this amendment at the moment, but I very much hope that my noble friend Lord Cullen and the Government will look at the whole of this schedule before the next stage of this Bill, because it seems to me at the moment that, as my noble friend Lord Renton said, it is a bit over-zealous.

Amendment, by leave, withdrawn.

[Amendment No. 211 not moved.]

11.29 p.m.

The Earl of Cranbrook moved Amendment No. 212: Page 51, leave out line 49.

The noble Earl said: I may say that in moving this amendment I have read and taken good note of the report of the Working Group on Introductions, which was published not long ago. I also note that under Article 11(2)(b) of the Berne Convention, which, after all, is the foundation document of a great deal of what we are doing here, the contracting parties are enjoined—I quote because the infinitive is split: to strictly control the introduction of non-native species",

and that is in essence what we are talking about. I am also introducing (and I couple them with No. 212) the following amendments: Nos. 214, 216, 217, 222 and 223, No. 222 being shared with the noble Duke who spoke just now.

I am also introducing these amendments to draw to your Lordships' attention the fact that there are in this country quite a number of people who practise the hobby of keeping reptiles and amphibians, and to some extent this clause impinges severely on what has hitherto been a perfectly legal and, as I will assert in a minute or two, still is a perfectly harmless occupation. We must realise that there are people who will be affected by this Bill. All the animals mentioned in my amendments are frogs or reptiles; all of them are native to North-West Europe. Two of them are, arguably, already native to this country. One of these is the common wall lizard which occurs naturally in the Channel Islands, and the other is the so-called edible frog. which I think is a self-reproducing hybrid which derives from two species which, again, were arguably native in this country in the past.

As with the birds which have been mentioned by noble Lords who have just spoken, there is considerable experience of keeping these animals in the free-living state in this country. Several of them have become established as self-perpetuating populations. There is no evidence whatsoever that they have spread or are likely to spread, or that they impinge in any way on the ecology of our existing impoverished native amphibian and reptile fauna. I may say here parenthetically that it is clear that the channel barrier, which presumably came into operation as the ice receded, has prevented the spontaneous introduction into the British Isles of a number of species which exist in the adjoining parts of continental Europe.

These are not, like the budgerigar, animals which are strangers to our shores from very distant parts; they are not exotic; they are European species. They have not, as far as can be judged, caused any harm to our existing flora and fauna, related or unrelated. Only the marsh frog has had a reasonable degree of success. This has colonised the Romney and Winchelsea marshes and has spread elsewhere in Kent and Sussex in similar habitats. In these habitats, it is filling a niche which is not currently occupied by our indubitably native frog rana temporaria. I am not able to inform your Lordships accurately of the number of people who engage in this hobby of keeping these animals. These people do not keep their amphibians and reptiles in small cages as do the aviculturalists about whom I spoke earlier. They enjoy liberating these animals into their gardens. So far, those that have escaped to the wild have shown no deleterious effect whatsoever on our native fauna.

That is the substance of the amendments that I wish to move. If my noble friend who is to reply is able to give satisfactory answers to the questions that I will now pose, I feel that it is possibly not necessary to require the deletion of these species although I think that many people would regard it as advantageous. First of all, the people who are now keeping these animals in their gardens are concerned to know what is precisely meant by the words: to release or allow to escape into the wild ". Is a man's private property the wild? Is a garden the wild? Where does the wild begin if a garden is not the wild? These are the sort of problems which are faced by the people who keep these animals in the wild.

Secondly, if it is decided that a garden is the wild, in that case I would seek assurances from the Government that if, in the light of their treaty obligations under the Berne convention, and in the light of the sound decision made by the committee on introductions, it is felt it must be necessary to include these inoffensive frogs and reptiles on this schedule, then I ask for assurances that the people (who may number 100 or possibly 1,000) will be given without difficulty and gratis the licences to continue to engage in the hobby which they have so far pursued legitimately. Just as the aviculturists engage in useful and productive biological research, so too have behavioural and other studies been carried out productively by people keeping these small reptiles and amphibians in the wild.

If I may join my amendment with a plea already uttered and which has already been answered favourably by the Front Bench, could these animals be listed by their Latin names first, so we know what we are talking about, and could they be listed in some sort of systematic order so that we do not get this extraordinary hotch-potch which has necessitated the odd linkage of amendments? I beg to move.

Lord Cullen of Ashbourne

I should like to take my noble friend Lord Cranbrook's amendments together, and also the amendments proposed by my noble friends the Duke of Atholl, Lady Elliot and Lord Massereene and Ferrard, because these amphibians have all been included in Schedule 8 for the same reason. These species are not known to be damaging to native flora and fauna in the circumstances in which they currently exist in Britain, but have been included as a precautionary measure. At this stage the possible consequences of large scale introductions are unknown and unpredictable, and the Government consider that further introductions should be monitored and permitted only under licence. However, we learn so much from hearing my noble friend on these subjects that I feel that Nye should look at all that he has said, which is always extremely educational, before resisting the amendment.

Viscount Massereene and Ferrard

Some of these introductions were quite a long time ago. Do the Government set a time limit for an introduction before they can decide it is going to become a pest?

Lord Cullen of Ashbourne

I think that the Government are advised by the NCC on these matters.

The Earl of Cranbrook

Do I take it that my noble friend was not going to resist the amendment or that, if he is not given time to consider it, he will resist it?

Lord Cullen of Ashbourne

What I meant to say was that I should like to look at it again.

The Earl of Cranbrook

I thank my noble friend for those remarks. I would remind him that there are a lot of people waiting for the answer, as well as myself. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 213 to 224 not moved.]

11.40 p.m.

On Question, Whether Schedule 8 shall stand part of the Bill?

The Earl of Swinton

May I ask the Minister one question? I find myself totally and absolutely confused by the debate on this matter and perhaps the Minister will write to me about it. I refer to the answer that he gave when my noble friend asked about moving capercaillies. I receive demands from friends—some of whom are Members of this House—and their relations for some of my Canada geese to be put on their lakes. If this proposal goes through, will I be breaking the law if I meet these demands? It would not be any skin off my nose, since I do not charge, and it would save all the trouble of catching and driving them over in the back of my car. So I should personally be delighted if it were the case; it would be a very handy answer to give. Perhaps the Minister will write to me about it.

Lord Cullen of Ashbourne

I shall write to the noble Earl.

Schedule 8 agreed to.

Clause 14 [Endangered species (import and export)]:

On Question, Whether Clause 14 shall stand part of the Bill?

Lord Chelwood

When we were debating the 1976 Act it was suggested on both sides of the House, very strongly, that unless there were some restriction on the ports of entry through which rare species of animals or plants could come into this country, or for that matter go out (be exported), the problem facing the Customs official would he an impossible one, and that as a result rare animals and rare plants that are not supposed to be imported, or parts of them, after they are dead, would find their way into this country. That indeed is what is happening. There was very strong pressure on the Government at the time, but it was resisted and the Bill was not suitably amended.

I know that this is a bit of a fast one for my noble friend, and all I am asking is that he should take this point on board and be good enough to let me know the Government's thinking about it. It is a fact that unless there is some restriction on ports of entry—I am talking about ports around our coast, and the airports—great problems arise and to some extent the law is an ass. At the time that we debated this question it was only at Heathrow that there were proper facilities for looking after live animals, including birds, coming into this country.

We have all read harrowing stories about the number of birds that arrive dead, or die after arrival before they can be disposed of. Obviously it would be much easier for all concerned, because of the lack of expertise nation-wide, if a small number of experts could be concentrated at a small number of ports of entry, be they airfields or sea ports. That would not be a very difficult thing to do. It would be an enormous step forward and it would mean that the law would be much more efficiently enforced and much cruelty would be avoided. I would ask my noble friend to be good enough to look at this question and be kind enough to write to me.

Lord Cullen of Ashbourne

I have had some advice on this particular point. Although it seems on the face of it that the best thing is to say that only certain ports and certain airports can be used, the difficulty is that there is a danger of people clandestinely bringing species in in other ways. It may be better when a licence is granted to a person to make it a condition that he uses a particular port or airport, and to specify that otherwise he will be going against the conditions of the licence. I understand that in America, where the ports and airports are definitely agreed, there has been considerable trouble. However I am sure that there is more to it than that, and I shall write to the noble Lord.

Lord Melchett

I hope that the noble Lord will not need to write to his noble friend, because, as I understand it, Amendment No. 242, in the names of my noble friend Lord Houghton of Sowerby, and the noble Lord, Lord Beaumont of Whitley, actually deals with this point. I am sure that those noble Lords have listened very carefully to what the Minister had t o say, and they will have their arguments prepared when we come to that amendment.

Clause 14 agreed to.

11.44 p.m.

Lord Mowbray and Stourton moved Amendment No. 225:

After Clause 14, insert the following new clause:

("Marine Reserves

.—(1) Where, on the advice of the Nature Conservancy Council, a relevant Countryside Commission, and any other body seeming to him to be appropriate, it appears to the Secretary of State desirable in the interests of conservation of the marine environment and its resources (including research), or for education, recreational or aesthetic purposes connected with the marine environment, may make, for any specified area, an order under this Part including all or any part of the following provisions:—

1. (a) Restrictions under section 5 of the Sea Fish (Conservation) Act 1967, as if sections 5, 15 and 20 of that Act were incorporated into this Part, with the substitution for references to the Ministers or any of them of references to the Secretary of State, and for sea fish of references to any organisms which normally inhabit the sea.
2. (b) Restrict any person entirely, or on conditions, from
   1. (i) entering that area or any part of it at all or any times;
   2. (ii) intentionally killing, injuring, disturbing or taking any wild animal, or intentionally picking, uprooting or destroying any wild plant;
   3. (iii) damaging or destroying any structure or place which any wild animal uses for shelter or protection;
   4. (iv) digging, drilling or dredging, or otherwise disturbing the sea bed;
   5. (v) removing any natural object or matter from the sea bed.

(2) An order under subsection (1) shall specify an area within the seaward limits of United Kingdom territorial waters, or such larger area as may be desirable in order to fulfil any Convention.

(3) For the avoidance of doubt it is declared that the powers under section 5 of the Sea Fish (Conservation) Act 1967 may be exercised in the interest of nature conservation in general, including the prevention of disturbance of other than sea fish by sea fishing operations.

(4) The areas listed in Schedule 9A shall be deemed to be the subject of an order covering all species for which there is power to make an order and made by the Secretary of State under this section and subject to the restrictions in the provisions mentioned in column 2 of that Schedule.

(5) Where an order is made under this section, or section 5 of the Sea Fish (Conservation) Act 1967,

1. (a) the authority making the order shall notify any authority which can permit discharges (either specifically or generally) under the Rivers Prevention of Pollution Acts 1951 and 1961, the Clean Rivers (Estuaries and Tidal Waters) Act 1960, the Control of Pollution Act 1974 and the Dumping at Sea Act 1974, which may affect the area specified in the order or any part of it, and that authority shall thereupon treat the need for conservation of the organisms set out in the order and the achievement of the restrictions set out in the order as the first and paramount consideration in dealing with matters which may or do affect that area; and
2. (b) in the case of a water authority, all applications for consent under section 34 of the Control of Pollution Act 1974 shall be deemed to be subject to a direction under section 35 of that Act.

(6) At the end of section 56 of the Control of Pollution Act 1974 shall be added a new subsection:— (7) For the purpose of enabling effect to be given to any Convention for the protection of wildlife or the marine environment, the Secretary of State may by order extend the definition in subsection (1) of "controlled waters" to include such area as the Convention may permit or require"; and in section 104(1) and (2) after "53" shall be inserted "56(7)".

(7) In section 12(1) of the Dumping at Sea Act 1974 at the end of the definition of "United Kingdom Waters" shall be added the words "or controlled waters within the meaning of section 56(1) of the Control of Pollution Act 1974".").

The noble Lord said: In speaking to this amendment I should like to speak to Amendments Nos. 292,560, and 271A. Before I start explaining the amendment, I must make an apology; there are three little mistakes in this new clause. In line 6 of the first subsection, the word "education" should read "educational". In the fourth line of subsection (1)(a) the word "for" before the word "references" should read "of". The first word in subsection (1)(b) should read "restricted", not "restrict". I apologise for the mistakes when putting it down.

This is an important amendment. This Bill deals with the habitat of our country. We are an island and round it are coastal waters which are an essential part of our habitat. We have signed conventions which up to this moment we have not taken any legal steps to implement. This Bill seems to offer a natural vehicle for doing this. The alternative would be for the Government to introduce some form of order, later on perhaps, or a Bill of their own later this year. But at this time they seem to have done nothing except to issue a small consultative document which was published yesterday. Therefore, in spite of the injunction of my noble friend the Chief Whip, I should like very briefly to give the background to this amendment.

The variety and increase in mankind's activities and impact on our coastal seas are the cause of very great concern. While we know that the sea is large and some impacts are localised, sites of particular value cannot at present he afforded any protection. A particular problem of marine conservation is that knowledge of the abundance of a species or of how the environment functions is very much less precise and less easy to translate into figures than it is on land. Conclusive scientific data can only be assembled well after the time when protective action should have been taken. Thus the power to take such action should not, I submit, depend on proof that the species or habitat is endangered. We need to manage our marine environment as a productive whole, which means maintaining its component parts well above danger level.

At the same time, single impacts can have a devastating and often irreversible effect on habitats and communities of long standing. A site may be of value because a rare or fragile animal or plant lives there, or perhaps it is the best example of a type of habitat or biological community, or because it is an important site for education or research studies which are of a long-term nature and require proper management. It may simply be of local importance because it is relatively undamaged and provides a nearby site for local studies or enjoyment or conservation of species locally.

The Nature Conservancy Council, in conjunction with the National Environment Research Council, have recently prepared a document entitled Nature Conservation in the Marine Environment—a very useful document which I recommend to all your Lordships, if you have not seen it—in which they set out much of the background to the marine reserve issue. In the last chapter they make several recommendations, some of which are directly related to this issue. Recommendation No. 4 is that: In order to establish conservation areas representative of particular habitats, relatively large areas should be designated in most cases". Their fifth recommendation was that in the case of specialised habitats of restricted areas, consideration should be given to designation of a series of small sites in addition to the large conservation areas. Recommendation No. 8 recommended that the NCC should seek consultation with the appropriate authorities to look into the possibility of obtaining legislative measures to maintain threatened marine species.

In addition, it is important that we act to conserve the critical feeding and breeding habitats of vulnerable species such as whales, seabirds and large fish. While some or all of these groups are protected from direct danger, it will not save them from starvation or pollution of food supply. There are required therefore two different types of action which perhaps will sometimes overlap. One is the conserving of areas of seabed and overlying waters to conserve the populations of our British marine species, and specific sites and habitats for conservation, research, recreation, aesthetic and local interest purposes. The other one is the conservation of critical habitats—food or breeding areas of endangered or otherwise threatened species.

Here in the United Kingdom we have no powers, of which I am aware, to conserve our valuable coastal waters, apart from regulations that may be imposed by the Ministry of Agriculture, Fisheries and Food and the Secretaries of State for Scotland and Northern Ireland on numbers and size of fish caught and the gear which may he used so to do. Thus, we cannot conserve the seabed and overlying waters in sites of local, scientific, conservation, recreation or aesthetic interest; conserve the food of threatened species or protected species, such as seabirds or whales; prevent pollution from destroying a unique site or a seabird population whose nesting grounds may already be protected.

In Britain, several marine nature reserves have been set up by the voluntary compliance of users with a management plan—two examples are the marine reserves of Bardsey and Lundy—which attempt to protect an area of sea and seabed and the wildlife living there from specified disturbances. Local conservationists, divers, anglers, bird watchers and commercial fishermen have joined forces to try to safeguard these particularly rich sites. But they remain unsupported by law and vulnerable to an unscrupulous operator.

Such sites need to be conserved by law as vital parts of our natural heritage. There should be provision in the Wildlife and Countryside Bill, by which a site may be designated a marine reserve. The examples of which activities might need to be controlled by by-laws in such a marine nature reserve are access, whether on the surface, under water or by hovercraft; activities which would damage the seabed and its associated flora and fauna; certain fishing practices, whether for sport or commercial purposes; sport and recreation; building operations, and, of course, the removal or depositing of objects and materials.

Already in some 60 countries statutory provision has been made for marine conservation areas designated marine or underwater reserves, sanctuaries or parks. Many of these are in temperate seas and protect habitats similar to those which are around our shores. Examples are to be found in France, Spain, South Africa, New Zealand, the Soviet Union, Japan and the United States.

Having made that brief introduction—which was probably too long for this time of night—I should like to explain what this amendment would do. We have put it in Part I, because it was thought desirable to include all provisions, such as Clause 24(3), which require notices to be published. It might otherwise have been thought by your Lordships more appropriate to put it in Part II for nature conservation, although this would have required more cumbersome drafting.

Subsection (1)(a), while providing the Secretary of State with powers that extend to our fisheries limits, via the Sea Fish (Conservation) Act 1967, is limited by subsection (2) to territorial waters unless an international convention allows actions to be taken further out. That is the spirit behind the entire amendment.

The powers given to the Secretaries of State for the Environment and for Scotland or Northern Ireland via the Sea Fish (Conservation) Act 1967 allow restrictions on the taking of living, or once living, things by any kind of vessel for the purposes of conserving the marine environment and its resources. The objective here is to enable fishing operations to be restricted in marine reserve areas, where they may be detrimental to the species living, feeding or breeding in those areas, whether on the seabed or in the water.

It overlaps with the Ministry of Agriculture's powers to declare purely fisheries restrictions, so as to allow the Secretaries of State for the Environment, and for Scotland and Northern Ireland to have full powers in the relevant areas. Orders by the Secretaries of State would be made under this Bill, but fishery officers are given powers of enforcement, because it would be illogical for those officers to be inspecting boats for one type of fishing and ignoring other activities which were also illegal.

The Sea Fish (Conservation) Act 1967 at present allows orders for the protection of areas from sea fishing to be made beyond territorial waters only where these implement international conventions. However, this situation is likely to change if the Fisheries Bill in its present form is accepted by Parliament. So subsection (1)(b) allows the Secretary of State to restrict such activities as are deemed necessary for the protection of any specific area, and the activities are listed.

Not all activities would need to be restricted at any particular place or time. Licences would be required to carry out a restricted activity. Subsection (1)(b)(i) could be used, among other things, to prevent the through passage of shipping. It is anticipated that this would only be exercised to restrict rights of innocent passage where international conventions permitted this. Generally speaking, ships have such a right, even in foreign territorial waters.

Subsection (2) limits the effects of subsection (1) to territorial waters unless an international convention allows them to be extended further. Subsection (3) makes it clear that the Ministry of Agriculture can use existing fishery restriction powers to stop sea fishing in the interests of other marine life. Section 10 of the Sea Fish (Conservation) Act 1967 already says that Ministers may take or concur or assist in the taking of such measures for the increase or improvement of marine resources as may be required for giving effect to any convention or agreement for the time being in force between Her Majesty's Government in the United Kingdom and the Government of any other country. This subsection is probably therefore at least partially unnecessary, but we should like the matter to be 100 per cent. clear.

Subsection (4) and the new schedule in our Amendment No. 271A provide a listing in the Bill itself, as if listed by the Department of the Environment for the purposes specified in the second column, of two existing voluntary reserves around our island. It should be noted that the areas concerned cover the beach as well as territorial waters. This is deliberate, in that the beach is obviously an extension of the sea, and we wish to set a precedent for any future reserves to cover the beach as well as the sea. It is possible that the inclusion of specific areas might lead to this being regarded as hybrid. if so, this provision would have to be withdrawn.

Subsection (5)(a) makes water authorities and other such bodies take the need for the conservation of wildlife in the listed areas to be of first and paramount importance. This is a well-known phrase in relation to the treatment of children before courts dealing with their custody or welfare. It means that it is always at the forefront of consideration and has the greatest weight placed upon it, but it is not exclusive. It is not therefore likely to lead to the revocation of licences to discharge, even where this is feasible, and might not lead to non-renewal but should certainly prevent most new grants of licences. It would be possible to have notification procedures when areas were under consideration so that licences were not granted between consideration and the making of the order, or to have a temporary order on the lines of emergency tree preservation orders. This seems to be getting rather complicated and has not been attempted.

Subsection (5)(b) requires new consent applications to water authorities for the right to discharge pollution to a marine reserve area to go to the Secretaries of State for the Environment or Scotland or Northern Ireland instead of having to be decided by the water authority.

Subsection (6) allows the Control of Pollution Act controls on shore-based pollution to extend beyond territorial waters if an international convention permits this. This is not likely to be very important in practice, but it seems reasonable to have the powers. Similarly, subsection (7) extends the control on foreign ships dumping in such areas outside territorial waters if an international convention allows it.

I make no apology for having spelled these details out at length. It is a most important matter. I have seen articles in some of the major papers of our country which deal with the problem. I think the Government have a duty not only to the country but to the two conventions which they have signed to say what they are going to do about these matters. Here we have a highly suitable vehicle. It is an all-party supported measure and I recommend it to the Committee. I beg to move.

Lord Melchett

As the noble Lord, Lord Mowbray and Stourton, has said, this is an amendment which is supported on all sides of the Committee, and indeed at Second Reading of this Bill I think it is fair to say that this was the one omission from the Bill above all others which received condemnation from all sides of the House. I noticed one or two noble Lords with their eyes on the clock when the noble Lord, Lord Mowbray and Stourton, was introducing this amendment. I would simply say to them that had the Government taken note of what was said to them at Second Reading the Government would have been moving this amendment and not us, and it would have been done a great deal more quickly.

I do not want to repeat anything that the noble Lord said in introducing this important amendment but I should like to try to demolish what I suspect might be at least part of the Government's response, and I hope that will at least save a little time. This matter has been looked at over a long period of time. I understand that an inter-departmental working party was set up by the Department of the Environment and I shall be grateful if the noble Lord can confirm this when he comes to reply. I understand that the working party has been examining the legislative and administrative aspects of marine nature reserves since March 1978. Agreement in principle to the setting up of marine nature reserves was reached by the working party, and I hope the noble Lord will be able to confirm those points which have been passed on to a number of noble Lords by the Nature Conservancy Council, which of course fully supports this amendment.

I stress the fact that this has been looked at since March 1978 because of what is to come. But before we get to that, last October I asked the Government in a Question for Written Answer whether they would confirm that they still intended to include provisions in this Bill to enable the NCC to set up marine nature reserves. On the 29th October the noble Earl, Lord Avon, confirmed to me that his right honourable friend the Secretary of State for the Environment was still considering the provision in the forthcoming Wildlife and Countryside Bill of powers for the Nature Conservancy Council to propose the designation of such reserves. In other words, last October, after a working party had been looking at this for about two years, the Government were considering what provisions to put in the Bill, and that seemed to be a very reasonable state of affairs.

We then come to what seems to me to be a quite extraordinary abuse of the procedures for consultation. I say that because I do not think it would be right to expect noble Lords opposite to say this of the Government's behaviour. There was very good consultation on this Bill. Consultation papers were issued on a range of subjects; on the whole, people were asked to respond within about six to eight weeks. Some of them were issued in the middle of the summer, in August, but nobody made too much of a complaint about that because the Government had behaved admirably in consulting all interests before the Bill was presented to Parliament.

We now have a consultation paper on marine nature reserves, issued yesterday, by a coincidence the day before your Lordships happen to be considering this amendment. Far from asking for responses by today, when the Committee were going to be considering it, or even within four or six weeks, the consultation paper actually asked people to respond three days after the end of the Session of Parliament, on the 2nd or 3rd August. That seems to me to be a blatant "try on" by the Government which really is not on, and in the face of all party support for this amendment I hope that this is the last we shall hear of that particular consultation paper. It is a nonsense.

This matter has been looked at since March 1978, an inter-departmental working party has agreed in principle that this is right, and it simply is not on that at this stage of the Bill the Government should start issuing consultation papers and then coming to your Lordships' House and saying: "We cannot do anything until the 3rd August, when we get all the replies in". That will not wash.

The noble Lord, Lord Mowbray and Stourton, made a most convincing case for this amendment, which has our full support and the full support of almost everyone who spoke on the Second Reading of the Bill, and I hope the Government will accept the amendment.

Lord Chelwood

I hope I may detain your Lordships for a few minutes on this very important amendment, perhaps one of the two or three most important amendments in the whole of this Bill. I find it extremely disappointing and also surprising that there is no provision in the Bill for the setting up of marine nature reserves. The Government have had a great deal of time to consider this. We are talking about a subject which has been of great concern to conservationists, to my knowledge, for at least 20 years, which covers seven or eight Governments. The then Nature Conservancy, as it was called, first raised the question of setting up marine nature reserves in March 1968, long before the noble Lord, Lord Melchett, mentioned, in a paper called Conservation Policy in the Shallow Seas. There was increasing Government interest in this subject after that and the Natural Environment Research Council set up a working party on marine wildlife conservation under Professor R. B. Clark, a great expert, in 1971.

I understand, as the noble Lord, Lord Melchett, said, and I think my noble friend did, that there has been an inter-departmental working party looking into this question. It was set up nearly three years ago. I am told—and I think this is right; perhaps my noble friend can confirm it—that it reached agreement in principle last summer, but that its deliberations were pigeon-holed for some reason that I do not understand.

Now what do we have? We have consultation, and only today the consultation paper was issued and a copy of it is in the Library. I would like to read two or three sentences from it because they are extremely relevant to this discussion: It is illogical that conservation policy should end at the low-water mark, especially in view of the interdependence of marine and land-based ecosystems. Public interest in marine conservation is growing and there is concern that not enough is being done to protect marine wildlife resource in both the national and the international community. The United Kingdom appears to be in danger of lagging behind many other nations". My noble friend Lord Mowbray said including some within the European Community who have already established statutorily protected marine reserves. Then, It could prove dangerous to wait until the damage is done before seeking the power to declare statutorily protected marine nature reserves". There is a lot of sense in that. The replies to the consultation paper have to be in by 3rd August, and that of course puts it out of court so far as this legislation is concerned; that is very regrettable.

So what do we do about it? The amendment by the three noble Lords, one from each of the major parties, is an enterprising and ambitious attempt to relate to this Bill the needs of marine nature conservation. I welcome it and I am very glad we are having this debate on this subject at this moment. But I would understand if the Government felt that this amendment was too ambitious and too all-embracing, and perhaps even encompassing some areas which have not yet been fully considered by the inter-departmental working party or even included in the consultation paper.

So let us address ourselves to the undoubted need reflected in the Nature Conservancy Council pamphlet to which attention has been drawn called Nature Conservation in the Marine Environment. It was published as long ago as October 1979, so it has been very widely read and was certainly very widely welcomed. We need to conserve representative as well as unusual and unique communities of marine plants and animals and their habitats. Let us confine ourselves now at this moment to that need and how it can be met in this Bill, without denying the Government the need for further and full consultation, which I am entirely in favour of.

I suggest, therefore, it would be both proper and possible for the Secretary of State for the Environment, through my noble friend, to propose to the House by way of a suitable new clause at Report stage that he should have a power to declare by order, after consulting the Nature Conservancy Council, areas of sea outwards from the low-water mark to be marine nature reserves. The order would specify activities to be banned from these areas and the penalties for transgression. There would be publication in draft, consideration of objections in the usual way, so that all interests affected could make their views known. A simple enabling power of this sort could be included in the Bill without any difficulty at all, with the proviso that it did not become operative until the consultation procedure has been satisfactorily concluded.

I earnestly request the Government to accept this suggestion of an enabling clause and to put it down at Report stage. I feel that it would go a long way—in fact, as far as it is possible to go at this moment—to meet the very strongly expressed wishes of the Committee. Six noble Lords spoke up in favour of marine nature reserves on Second Reading. I think that there is no doubt at all that your Lordships' wish is that an enabling clause should be included. I think that to fail to do this would be "illogical", to use the word that I quoted from the consultation paper, and shortsighted. We should continue to be out of step with many other countries and, incidentally, defaulting on our international obligations.

If the Government do not put down an enabling clause on Report, other noble Lords will certainly do so, and I would expect such a clause to be carried against the wishes of the Government. However, there is no need whatever for that situation to arise. I believe that there is a very strong case for an enabling clause so that the Government can create marine nature reserves—even an unanswerable case.

Lord Craigton

Before the Minister replies, may I point out that I have at a later stage in the Bill, tabled a series of amendments, beginning with Amendment No. 378, to create marine reserves in a much simpler way? I simply suggest extending the land of Britain for SSI purposes by three miles out to sea, and letting the NCC get on with it. I know that that is delightfully simple. I really cannot see what is wrong with it. I shall not attempt to move that amendment now, but the noble Lord could take into consideration when he makes a decision on this amendment, which I support entirely—and I would be glad to withdraw my own amendment—that there is a sort of long-stop which might get him out of some difficulty.

Earl Peel

There must be very few subjects on which I can claim superior qualifications to your Lordships, but I am a qualified deep-sea diver, Sub-aqua Club Class 3—if that means anything to your Lordships—and I have dived considerably around the world. I should like very much to endorse this amendment and also to take the matter a stage further and agree with the noble Lord, Lord Craigton, particularly on the subject of marine nature reserves. I have dived extensively off the African coast and it is extraordinary that where what are called marine "national parks" exist the difference between those national parks and the non-park areas is most impressive indeed. I would certainly endorse everything that has been said.

The noble Lord, Lord Mowbray, when he mentioned the European countries that were adhering to the EEC directives on this, failed to mention Italy. I raise this particularly because I have also dived off the Italian coast and in the Mediterranean and there, of course, the damage that has been done is absolutely criminal. I, therefore, urge your Lordships and the Government to look very closely at this and perhaps to take it a stage further and consider marine national reserves.

The Earl of Avon

First, I should like to thank my noble friend Lord Mowbray and Stourton for bringing up this subject which is so important. To put the record straight, I should like to remind both him and the noble Lord, Lord Melchett, that, when we spoke on this during the Second Reading debate, I did say that there was a consultation paper coming and I asked people to be patient until it arrived. In fact both my noble friends quoted quite a lot from the consultation paper, proving that it has been read and that it is of interest. I think I can say that we have done what we said that we would do on Second Reading.

I should also like to say that it is very easy to move dates just that little bit around to make it seem as though everything took a lot longer than it did, and I think that that has been done a little as regards this matter. There was an inter-departmental working party which started in 1979 and ended, I am informed, towards the end of 1980. They had the greatest difficulty in even arriving at an agreed consultation paper, so I do not think that we have been all that slow. When I replied to the noble Lord, Lord Melchett, in a Written Answer in October, by that stage it was, of course, getting a little late to get a provision into the Bill.

Lord Melchett

I do not think that the noble Earl ought simply to brush this question away quite as easily as that. It is not a substantive point and I do not want to press him. But here we have a paper of only two and a half sides—13 paragraphs. I do not know how fast the noble Earl types, but even I could have managed to type this in an hour and a half. Why did it take from October to 2nd February to get it typed?

The Earl of Avon

I think that the noble Lord is showing naïvety about the complication of this issue. I do not think that he is beginning to realise the complexities which are involved here. Perhaps I may give an indication. For instance, it involves the MAFF, the Scottish Department, the Department of Trade, the Department of Energy and the Department of Industry. This cannot be done overnight. I think it would have been wrong to have asked us to proceed much faster. Anyway, as noble Lords now know, the Government are currently in the process of consulting the interested organisations about legislation to provide for the statutorily protected marine reserves. We shall, of course, study the proposals put forward by my noble friend Lord Mowbray and Stourton and also by my noble friend Lord Craigton.

The whole subject is extremely complex, as I said on Second Reading. There are a great number of legitimate interests which are involved. Here I would turn to my noble friend Lord Peel and say that I was about to say: "Even sub-aqua", thinking that nobody in this Committee would actually come up with that, but he even out-manoeuvred me there. I know that noble Lords will have looked at the consultation document. No fewer than 100 people are being sent this letter in order to ask for their reactions. It would be impracticable to ask the Government to act in advance of the completion of our present consultations. The Government do not want to prejudge the outcome of what we consider to be a very important and complex matter.

My noble friend Lord Chelwood mentioned an enabling power. I undertake to go to the Secretary of State to see whether it is possible for us to include an enabling power in this Bill. I shall keep my noble friend Lord Mowbray informed.

Lord Mowbray and Stourton

I thank my noble friend Lord Avon for what he has told us, especially for the assurance that he has given about coming back to us about the suggestion of my noble friend Lord Chelwood of an enabling power for an order. As my noble friend Lord Craigton has already informed us, we shall have second and third bites at this particular cherry on Committee on the fourth or fifth days, or both. Bearing that in mind, I shall in one moment withdraw the amendment for the time being.

I should like to repeat what the noble Lord, Lord Melchett, said. I think that for the gestation time that this consultative document has been in the womb it is a remarkably small, insignificant baby. When I first saw it, I thought that it was a DoE PR blurb about the consultative document, and I had to be convinced later that it was the actual document. To be quite honest, that is how surprised I was. Having said that, I do not want to appear ungracious. I am grateful that my noble friend has said that the Government will look at this again and, looking at the clock, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 9 [Amendments of the 1976 Act]:

12.18 a.m.

The Earl of Cranbrook moved Amendment No. 226:

Page 52, leave out lines 45 to 47 and insert— ("1.—(1) After subsection (2) of section 1 of the 1976 Act (restriction on importation and exportation of certain animals and plants) there shall be inserted the following subsection—").

The noble Earl said: The schedule with which we are now concerned is involved with the Endangered Species (Import and Export) Act 1976. This enacted into our United Kingdom legislation the so-called Washington Convention. In the Bill as it stands, the Government are seeking to delete from the 1976 Act a valuable measure in Section 1(3), which lays a duty upon the Secretary of State to consult his scientific advisers before issuing a licence to import.

The Washington Convention requires that international trade in species listed in Appendices 1 and 2 should be permitted only on the advice of a national scientific authority, which in this country is the Scientific Authority for Animals. This restriction is highly desirable. It is unreasonable to expect the Secretary of State or, in practice, the officials of the Department of the Environment to be competent to make the scientific judgments that are necessary before a licence can be issued. In this particular part of the Bill the Government appear to be seeking to relieve the Secretary of State of his obligation to consult the scientific authority.

In moving the amendment I am aware that there are practical difficulties in operating the 1976 Act as it stands at present. These arise, I understand, to a great extent because in our 1976 Act this country aims to protect a much wider list of species than those that are strictly required by the two appendices to the Washington Convention that I mentioned. In fact, the technique to which I have referred as being British in origins, the technique of reverse listing, has been applied. As a consequence there is undoubtedly the possibility, if not the inevitability, that the workload on members of the Scientific Authority for Animals can become highly excessive.

Given the large number of applications and the nature of those applications, some of which are entered, as it were, in a precautionary manner in order to obtain general permissions rather than specific permissions, some degree of planned delegation is almost certainly necessary. But speaking from the point of view of science and of scientifically based conservation, the decision to delegate must rest with the scientific authority, which must be free itself to decide which applications it wishes to review. Some modifications of the 1976 Act may be required, but I do not think that the change which is proposed in this Bill is the right change. Conservationists fear that to remove the primary responsibility from the scientific authority would be detrimental to endangered or vulnerable species that are concerned in international trade. I beg to move.

Lord Melchett

This is an important amendment and I should like strongly to support everything that the noble Earl has said. The 1976 Act had this measure which proved extremely valuable, and we have heard a lot during the course of the Committee stage about the emphasis which the Government place on the advice they receive from their scientific advisers. It seems to me to be extremely detrimental, to put it mildly, that in this particular part of Schedule 9 they should be seeking to avoid going to their scientific advisers for advice, and I hope that the Government will accept the noble Earl's amendment.

Lord Cullen of Ashbourne

Owing to the time I should like to cut down what I was going to say, and ask the noble Earl whether he would withdraw his amendment on an undertaking that we will put down a Government amendment on Report which would reinstate Section 1(3) of the 1976 Act, subject only to a proviso that where a scientific authority have given general advice to the Secretary of State with regard to a defined category of applications, and have informed the Secretary of State that they do not wish to be consulted on individual applications falling within that category, the Secretary of State shall not be required so to consult them. I hope that on that understanding the noble Earl will withdraw his amendment.

The Earl of Cranbrook

The form of words that has been suggested seems to me to leave the decision with the scientific authority, which is precisely the request I make. Therefore, in these terms I am glad to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 227 not moved.]

12,25 a.m.

Lord Cullen of Ashbourne moved Amendment No. 228: Page 53, line 3, at beginning insert ("is part of or").

The noble Lord said: I suggest it would be convenient for the Committee to consider at the same time the following amendments: Nos. 236, 237 and 238. As drafted, the prohibition in respect of the sale of animals or plants contained in the new Schedules 4 and 5 to the 1976 Act (species considered as endangered) includes whole, live or dead specimens and items derived or manufactured from them. It does not, however, cover parts of the animals or plants listed, or eggs or other immature forms of animals. These amendments are designed to rectify those omissions and would bring the new provision into line with the import and export licensing under the Act which also covers the parts, eggs and so on specified in Schedule 3.

On Question, amendment agreed to.

The Earl of Cranbrook moved Amendment No. 229: Page 53, line 12, after ("words") insert ("(2A)").

The noble Earl said: At this stage we are concerned with that part of the 1976 Act which relates to measures concerning the commercialisation of endangered species. The amendment would insert a provision to prohibit the exhibition or display of species, an activity which clearly could be for commercial gain if involved only with competitive types of display with which prizes may be concerned. This small amendment tidies up the situation and brings it in line with the basic intentions of the subsection.

Lord Cullen of Ashbourne

I must oppose this amendment not only because of the severe limitation imposed by the reference to subsection (8) but because it is unnecessary, as Section 139 of the Customs and Excise Management Act 1979 already provides the commissioners with power to dispose of goods which have been condemned by the court, or deemed to have been condemned in the absence of a claim against forfeiture within a month, in such manner as the commissioners may direct. For the most part, therefore, the commissioners already have the powers which the amendment seeks to give them, and as regards endangered species, it is their practice to consult with the Department of the Environment before exercising their power. Although the commissioners have power to return, for instance, an animal to its country of origin, they do not have power to recover the expenses. With a living animal the proposal could be attractive and the Government intend to consider it with a view to bringing forward an appropriate amendment on Report. In view of that intention, I hope my noble friend will withdraw the amendment.

The Earl of Cranbrook

I think the lateness of the hour led us into the delusion that we were addressing each other. In fact, I spoke inadvertently to Amendment No. 235 and my noble friend spoke to Amendment No. 229; I was sharp enough to notice that we were not talking about the same thing. But under the circumstances I beg leave to withdraw No. 229, the amendment to which I should have been speaking.

Amendment, by leave, withdrawn.

Lord Chelwood moved Amendment No. 230: Page 53, leave out lines 21 to 23 and insert—

("Powers to order return to country of origin or disposal of

animals, plants or items, and powers of entry

2. At the end of section 1 of the 1976 Act there shall be inserted the following subsection— (8A)(a) Where as provided by subsection (8) above any animal, plant or item is condemned as forfeit or is deemed to have been duly condemned as forfeited under the Customs and Excise Management Act 1979, the Court or the Commissioners (as the case may be) may, where in the opinion of the Commissioners it is practicable to do so, order the same to be returned to the country from which it appears to have originated, or to be otherwise disposed of in accordance with the advice of any of the approved scientific authorities as defined in section 2 below. (b) Where any animal, plant or item is dealt with under paragraph (a) of this subsection, the Commissioners may themselves arrange for the same to be returned to the country from which it appears to have originated, or to be otherwise disposed of as mentioned in that paragraph, and may recover any expenses thereby incurred from any person responsible for its import or any person who possessed or had control of the animal, plant or item at or within one year before the time of its seizure.".").

The noble Lord said: I beg to move Amendment No. 230 and, at the same time, with permission, to speak to Amendment No. 232 as well. I will be very brief. This new subsection of the Endangered Species (Import and Export) Act 1976 would give Customs and Excise powers either to return the forfeited specimens to the country of origin or otherwise to dispose of them as advised by the appropriate scientific authority. In addition, Customs and Excise would be able to recover any costs that they might incur on behalf of the importer.

The prime objective of disposal in such circumstances, of course, would be to ensure by whatever means possible the best chance of conservation of the species. Destruction, the normal alternative, would usually be out of the question. There would be two alternatives, really, I suppose: first of all, to send the specimen back to the country of origin, which is envisaged in Article 8 of the Convention on International Trade in Endangered Species—that seems to me to be highly improbable and usually inadvisable—or, secondly, perhaps, to place the specimen in a zoo or other centre specialising in the breeding and preservation of the species concerned.

Since it is the importer who causes this problem, it seems right to me, and I think it will to other noble Lords as well, that it should be he, the importer, and not public funds, who should bear the costs incurred by the disposal of the specimen in the best possible way. Currently, Customs and Excise, as I have said, lack the power to recover these costs. This amendment would give them this power, thereby ensuring that no costs fall on the public purse, while ensuring the best possible way to safeguard the illegally imported species concerned. I beg to move.

Lord Melchett

I should simply like to support the noble Lord's amendment.

Lord Cullen of Ashbourne

I am afraid that, quite unintentionally, I have already answered my noble friend on this point, as he will have heard. I doubt whether the Committee will want me to say again what I said just now by mistake.

Lord Chelwood

I was not listening as well as I should have been.

Lord Cullen of Ashbourne

The noble Lord will be glad to hear that we propose to put forward an amendment on this point. We intend to consider this proposal with a view to bringing forward an appropriate amendment at Report stage. I therefore hope that my noble friend will withdraw his amendment.

Lord Melchett

The only problem with that is that I am now not at all clear what the noble Lord would have said about Amendment No. 229, to which I do not think he has yet responded. I wonder whether there is just a word or two that he could say—"Yes" or "No" or "Maybe"—which would let us know what was the Government's attitude to the amendment which the noble Earl so ably did not move.

The Earl of Avon

I think it was spoken to with Amendments Nos. 226 and 227, when Lord Cranbrook moved his earlier amendment.

The Earl of Cranbrook

It was simply consequential, in fact, on the amendments I withdrew.

Lord Chelwood

So far as these two amendments are concerned, I greatly appreciate what my noble friend has said, and I naturally withdraw the amendment that I have moved.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby moved Amendment No. 231.

Page 53, line 34, at end insert— ("(11) The Secretary of State shall not issue a licence under this section authorising for the purpose of trade the importation or exportation of anything of a kind to which Schedule 6 for the time being applies.").

The noble Lord said: This is to strengthen the species in Schedule 6. It would forbid trade both ways, out and in, in the species in Schedule 6. This would take some of the commercial temptations out of killing them. Schedule 6 comprises species which may not be killed in certain specified ways. Those ways are outlawed, and to kill them in those ways may be an offence. If we stop traffic in the animals in Schedule 6 between this country and any other country, and between any other country and this country, the chances of the animals in Schedule 6 being left alone are a little stronger. That is what this amendment is all about. I beg to move.

Lord Cullen of Ashbourne

I am obliged to oppose this amendment, the effect of which would be to oblige the Secretary of State to refuse to issue a licence for the importation or exportation of a specimen of a species listed in Schedule 6 for the purposes of trade.

Of the species listed in Schedule 6, the otter, for example, is already listed in Appendix 1 of the Washington Convention, and international trade for commercial purposes is therefore already prohibited. Most of the others, however, are not even regarded as vulnerable and it would not therefore be proper or justified for the Secretary of State to ban their import or export. I have, on the other hand, noticed that there is one that is not the subject of licensing under the 1976 Act and so I undertake to ensure that it will become controlled when the Bill is enacted. I refer to the red squirrel. In this way, it will be possible to detect if species come into trade, and appropriate measures can be taken. Although the substance of the amendment would cause it to be resisted in any event, the manner in which it is put down is believed to be defective to achieve its purpose. In the light of the undertaking I have just given, I hope that the noble Lord, Lord Houghton of Sowerby, will withdraw his amendment.

Lord Houghton of Sowerby

Certainly. I am glad to add to the heavy burden already assumed by the Front Bench of matters to be further considered. I guess that the Report stage will be a very interesting time.

Amendment, by leave, withdrawn.

[Amendments Nos. 232 to 234 not moved.]

12.36 a.m.

The Earl of Cranbrook moved Amendment No. 235: Page 54, line 9, at end insert (", or displays to the public").

The noble Earl said: I have already inadvertently spoken to Amendment No. 235, the effect of which is to include Schedule 4 to the 1976 Act provisions to prohibit display. I beg to move.

Lord Cullen of Ashbourne

Again, I am afraid that I must oppose the amendment, which would have the effect, as the noble Earl has said, of prohibiting exhibition to the public of a species listed on the new Schedules 4 and 5 proposed for the 1976 Act, or of a part or derivative of such a species, unless a specified licence had been issued. At one time, we seriously considered including such a provision in the Bill, but we concluded that it would not be justified. The major effect of the provision would be upon zoos and museums. The licensing of captive bred specimens, which it would make necessary, would be particularly onerous on the former. This would have little benefit and could even have the result of hindering some of the important captive breeding projects being conducted by zoos.

There would still be sufficient safeguards on the importation of specimens for display to the public. All the specimens on the new Schedules are regarded for licensing purposes as endangered. Consequently, the utmost care is taken in the consideration of licences to import them and the scientific authority will continue to be consulted on individual applications. A licence to import both live and dead specimens will therefore have been thoroughly vetted and its issue will have been critically judged in terms of conservation. There will still be the further safeguard for live specimens, for which the Secretary of State will continue to give directions under Section 6, on their movement after importation. Thus we shall be able to keep track of their whereabouts and detect any infringement of the conditions. I accordingly invite my noble friend Lord Cranbrook to withdraw his amendment.

The Earl of Cranbrook

I thank my noble friend for that reply. I should have thought that the legitimate activities of zoos and museums would have been covered by licensing, possibly by general licensing, and would not have created the problems that he has suggested they would. I note with interest the fact that he has informed the House that the movements of live specimens that are imported will be carefully monitored after their importation, which is an interesting and valuable point to have had made. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendments Nos. 236, 237 and 238 en bloc:

Page 54, line 10, after ("animal") insert ("or an egg or other immature stage of an animal").

Page 54, line 15, leave out ("anything which") and insert ("any part of or anything which derives from or").

Page 54, line 19, after ("is") insert ("a part of or derives from or is").

On Question, amendments agreed to.

Lord Cullen of Ashbourne moved Amendment No. 239: Page 54, line 20, after ("before") insert ("the").

The noble Lord said: This is a drafting amendment which repairs the omission of the word "the". I beg to move.

On Question, amendment agreed to.

Lord Denham

I think it would be with the general agreement of the Committee that we should break at this point. I beg to move that the House do now resume.

Moved accordingly, and on Question, Motion agreed to.

House resumed.