AMENDMENTS OF THE 1973 ACT

HL Deb 10 March 1981 vol 418 cc236-73

Possession of dead badgers etc.

5. For subsections (2) and (3) of section 1 of the 1973 Act (possession of recently killed badgers etc.) there shall be substituted the following subsection— (2) If, save as permitted by or under this Act, any person has in his possession or under his control any dead badger or pelt from a dead badger, then, unless he shows that the badger was killed otherwise than in contravention of the provisions of this Act, he shall be guilty of an offence.

Abolition of special exceptions for authorised persons

6.—(1) Section 7 of the 1973 Act (exceptions for authorised persons) shall be omitted.

(2) In section 2(c) of that Act for the words "subject to section 7(3) of this Act" there shall be substituted the words "save as permitted by or under this Act".

(3) Section 6 of that Act (areas within which section 7(1) does not apply) shall be omitted.

(4) In subsection (2) of section 8 of that Act (general exceptions) paragraph (c) (live badger taken in circumstances in which, by virtue of section 7(1) or (2), the taking did not constitute an offence) shall be omitted.

(5) In section 11 of that Act (interpretation) the definitions of "area of special protection" and "authorised person" shall be omitted.

Protection for land, crops, poultry, etc.

7.—(1) In section 8 of the 1973 Act (general exceptions), after subsection (1) there shall be inserted the following subsections— (1A) A person shall not be guilty of an offence under section 1(1) of this Act by reason of—

1. (a) the killing or taking or the attempted killing or taking of any badger, or
2. (b) the injuring of any badger in the course of taking it or attempting to kill or take it,

if he shows that his action was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property.

(1B) The defence provided by subsection (1A) above shall not apply in relation to any action taken at any time if—

1. (a) the risk of the damage was known before that time and a licence under section 9 of this Act authorising that action was not applied for as soon as reasonably practicable after the risk became known; or
2. (b) an application for such a licence has been refused."

(2) In section 9 of that Act (licences) at the end of subsection (1) there shall be inserted 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".

(3) In subsection (2)(b) of that section after the words "paragraph (d)" there shall be inserted the words "or (e)".

Enforcement and penalties

8.—(1) In subsection (1)(c) of section 10 of the 1973 Act (enforcement, penalties etc.) for the words from "any badger" onwards there shall be substituted the words "anything which may be evidence of the commission of the offence or may be liable to be forfeited under subsection (3) below".

(2) In subsection (2) of that section for "£20" there shall be substituted "£200" and for "£100" there shall be substituted "£1,000".

Interpretation

9. In section 11 of the 1973 Act (interpretation) for the definition of "local authority" there shall be substituted the following definition— 'sale' includes hire, barter and exchange and cognate expressions shall be construed accordingly".").

On Question, amendment agreed to.

Clause 12 [Protection of wild plants]:

Lord Sandys moved Amendment No. 92A: Page 13, line 19, after ("person") insert ("(a)").

On Question, amendment agreed to.

[Amendment No. 92B not moved.]

Lord Sandys moved the following amendments:

Page 13, line 22, leave out ("(a)") and insert ("(i)").

Page 13, line 23, leave out ("(b)") and insert (" (ii)").

Page 13, line 23, at end insert ("or (b) publishes or causes to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell, things falling within paragraph (a),").

The noble Lord said: These amendments are consequential, my Lords, and I beg to move.

On Question, amendments agreed to.

Baroness David moved Amendment No. 93:

Page 13, line 34, at end insert— ("( ) For the purpose of subsection (2) of this section, a plant included in Schedule 7 shall be deemed to be or to have been a wild plant unless the person charged shows that it is in his possession otherwise than in contravention of any provision of this Part.").

The noble Baroness said: My Lords, we now turn to plants. This is another effort to make the Bill more realistic and to make the policing of this subsection more practical. One of the greatest weaknesses of this measure is that the enforcement of its provisions is very difficult. We do not want to pass laws which we assume from the moment they are made will be broken. Time and again the Bill proposes provisions to protect this creature or that habitat but denies the means of enforcement, because it makes no competent person responsible for the task or because it defines the offence in terms so vague that no prosecution can hold or because it offers a loophole to offenders.

Here we have a loophole. It is right, as I said in Committee, that nurserymen who have been growing rare plants for years should still be able to offer their productions for sale, even when the plant is a protected one. But a rogue nurseryman, and there have been such, has only to declare that a plant he has stolen from the wild has been raised in his garden for it to be virtually impossible to prove otherwise, unless he is caught red-handed in the stealing.

My amendment merely applies to wild plants the same rule, expressed in the same terms, as has been accepted all along in Clause 1(2) of the measure with regard to wild birds and their eggs; that is, the onus of showing that the protected creature possessed or offered for sale has been legally obtained should be on the possessor or vendor. In Clause 1(5) earlier today the noble Earl, Lord Avon, moved an amendment making the subsection read: In this section, 'wild bird' does not include any bird which is shown to have been bred in captivity". The words "which is shown to have been" were suggested by the noble Lord, Lord Beaumont of Whitley, in Committee. His point then appeared not to have been taken. However, the Government having reread what the noble Lord said, or it having been explained to them what it was all about, they tabled it as their own amendment today, and we are pleased about that. I hope that what has been accepted for birds will be accepted for plants because the principle is exactly the same. I beg to move.

12 midnight

Lord Sandys

My Lords, although the noble Baroness argued her case well, I regret to tell her that there are defects in the amendment. Further, the comparison she drew with birds is not that precise, as I will show. The aim of the amendment is to restrict the trade in plants which have been taken from the wild. The extent to which horticulturists take wild plants or parts of them from the wild and then sell them is unknown at present.

Baroness David

My Lords, the aim of the amendment is not to stop them selling plants taken from the wild. We want them to be able to sell plants that are protected. We do not want them to take plants from the wild and pretend they have grown them; they must prove they have had them in their gardens.

Lord Sandys

My Lords, if the noble Baroness will patiently await my next sentence, she will probably see that that point is well understood. As the noble Baroness knows, to take plants from the wild would be an offence under existing legislation. The Conser- vation of Wild Creatures and Wild Plants Act 1975 prohibits the uprooting of any wild plant. A person charged with selling a protected plant in Schedule 7, or any part, or anything, derived from it, would need to show—this is the point that I think the noble Baroness is making—that the plant was from cultivated stock, be it his own, or some other stock, or that a licence had been obtained permitting the sale of the plant.

Lord Melchett

My Lords, I am listening very carefully, because I think that we got into a muddle over this point at the Committee stage. May I ask the noble Lord where in the Bill it is stated that what he has described is in fact the case? He said that a nurseryman would have to show that the plant was taken from cultivated stock. Where in the Bill is that stated?

Lord Sandys

My Lords, at the present moment I cannot put my finger on the precise part of the Bill, but I shall attempt to obtain advice on the matter.

The noble Baroness drew attention to a situation in which she believed a rogue nurseryman would be perpetrating an act that her amendment is aimed to prevent him from carrying out. We believe that the amendment is defective in its drafting, in that it quotes an incorrect line of reference, which would have the effect of amending Clause 13. The correct reference would be to line 24. The noble Baroness may already realise that, and she could move a correcting amendment to this amendment.

Lord Melchett

My Lords, I am hoping that if I intervene briefly the noble Lord will be able to receive advice on the point about which we asked him and then intervene during my remarks to tell me the answer. It seems to me that without the proposal that we are suggesting in this amendment the provisions of the Bill will be totally unenforceable. I do not know whether the noble Lord, Lord Sandys, would like to intervene during the course of my remarks, so as to answer the question that has been put to him, since it is of the most vital importance, and if we do not receive a satisfactory answer, I feel that we shall have to press the amendment. If there are drafting errors in the amendment, we could have it tidied up at Third Reading. But if the noble Lord does not propose to intervene, I shall assume that he was inaccurate in what he said and that the Bill does not contain a provision which does what he suggested. Certainly we have not been able to find such a provision.

Our reading of the Bill on this point is that a nurseryman would simply be able to say that the plant was cultivated in his nursery. There would be no element of proof—as there is in the part of the Bill relating to birds—on the nurseryman to show that the plant had been lawfully cultivated or lawfully held in his collection. That is exactly the situation that would make the protection of birds legislation totally unenforceable, and it seems to me that without a similar provision in this part of the Bill, the provisions relating to plants will be totally unenforceable.

This matter was considered late in the evening at the Committee stage and it would be no credit to your Lordships' House if we now allow it to slip through late in the evening, leaving the matter as totally unenforceable and as a meaningless piece of legislation. I really feel that we require a serious answer to this question. The noble Lord, Lord Sandys, does not yet seem to be in a position to confirm the point that he made, which is the one that we want confirmed. However, if he is in such a position, I shall gladly give way to him.

Lord Sandys

My Lords, perhaps it would be to the benefit of the House if I were to expand a little on this matter. I recognise that the noble Lord, Lord Melchett, is perfectly entitled to a full reply, as indeed is the noble Baroness in regard to her amendment. The question that we have to face in relation to the amendment of the noble Baroness is whether we need to place a requirement on a trader in plants which appear in Schedule 7—and a number of those featured in Schedule 7 are available commercially—to show that what he is selling are from cultivated stock, and not obtained from the wild, because if the amendment is carried, the assumption will be that if he is selling a Schedule 5 plant it will be a wild plant, unless he can show otherwise.

Baroness David

No, it is not that; I am sorry. It is that he has got to show that he has cultivated it. It may be a protected plant, but he has got to show that it is one that he has cultivated in his garden. He has got to prove it is one that he has had growing there. It will be in his catalogue, or something like that.

Lord Sandys

But the thrust of the amendment is to put the burden of proof on the defendant.

Lord Melchett

The noble Lord said that that was already what the Bill did, but he now appears to be contradicting himself. This is a muddle. We did not get it straight at Committee. If we do not make this amendment I see absolutely no prospect of us getting it straight before the Bill leaves your Lordships' House.

Lord Sandys

I think that perhaps it would be for the benefit of the noble Baroness if I were to expand on this a little further. I do not think it would probably be the wish of the House to be without this information. The Government have no idea of the extent of the trade in what are truly wild plants on Schedule 7 and what is carried on at the present moment. Without certainty, therefore, there is indeed a real threat to our stock of protected wild plants from such activities, and we would be reluctant to place a further obligation upon firms and individuals engaged in selling plants. The Bill as drafted therefore makes it an offence to sell a wild plant on Schedule 7, unless, of course, a licence has been granted, but it will be for the prosecution to show that the plant was wild and not cultivated.

Baroness David

My Lords, I do not see anything about a licence. I cannot say that I am at all satisfied with the replies I am getting from the noble Lord. His replies do not seem to tie in with the Bill as it stands; and I do not see why the nurseryman, any more than the person who has got the bird or the egg, should not have to prove that it came into their possession law- fully. It seems to me perfectly reasonable that the same thing should apply to both clauses. I am not satisfied at all, so if the noble Lord cannot say that he will take it away if he has not fully followed it, I think I shall have to press it.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, Amendment No. 94 has been wrongly marshalled and should come after Amendment No. 109, so the next amendment is No. 95.

Lord Sandys moved Amendments Nos. 95 to 109:

Page 52, line 40, at end insert—

("Alison, Small	Alyssum alyssoides
Broomrape, Bedstraw	Orobanche caryophyllacea
Broomrape, Oxtongue	Orobanche loricata
Broomrape, Thistle	Orobanche reticulata")

Page 52, line 42, at end insert—

("Club-rush, Triangular

Scirpus triquetrus")

Page 52, line 43, at end insert—

("Cow-wheat, Field	Melampyrum arvense
Cudweed, Jersey	Gnaphalium luteolabum")

Page 52, line 47, at end insert—

("Galingale, Brown

Cyperus fuscus")

Page 53, line 5, at end insert—

("Hares'-ear, Sickle-leaved	Bulpeurum falcatum
Hares'-ear, Small	Bupleurum baldense")

Page 53, line 8, at end insert—

("Knotgrass, Sea

Polygonum maritimum"

Page 53, line 11, at end insert—

("Leek, Round-headed	Allium sphaerocephalon
Lettuce, Least	Lactuca saligna")

Page 53, line 12, at end insert—

("Marsh-mallow, Rough

Althaea hirsuta")

Page 53, line 18, at end insert—

("Pear, Plymouth

Pyrus cordata")

Page 53, line 19, at end insert—

("Pink, Childling	Petroraghia nanteuilii
Sandwort, Norwegian	Arenaria norvegica")

Page 53, line 22, at end insert—

("Solomon's-seal,	Polygonatum
Whorled	verticillatum")

Page 53, line 25, at end insert—

("Spurge, Purple

Euphorbia peplis")

Page 53, line 26, at end insert—

("Violet, Fen	Viola persicifolia
Water-plantain, Ribbon leaved	Alisma gramineum
Wood-sedge, Starved	Carex depauperata")

Page 53, line 28, at end insert—

("Wormmood, Field

Artemisia campestris")

Page 53, line 30, at end insert—

("Yellow-rattle, Greater

Rhinanthus serotinus").

The noble Lord said: My Lords, we come here to a lengthy schedule. Your Lordships will remember that while the Government were happy to accept in principle the amendment moved by the noble Lord, Lord Beaumont, which covered a list of 24 endangered plants, we were unable to accept his amendment in fact because the plants would not fit alphabetically within Schedule 7. We have now done this, and removed the excess of commas to which the noble Baroness, Lady David, drew attention, in this Government amendment. I think this is now right, and we are happy to accept that the 24 plants should be added to the schedule of protected plants. I beg to move.

Lord Beaumont of Whitley

My Lords, I am very grateful to the noble Lord and the Government for doing all this hard work, for sorting it out into alphabetical order and for putting it into the right number of amendments. I think this is an improvement, and I congratulate the Government.

Lord Kilbracken

My Lords, if the noble Lord is dealing with all the amendments from No. 95 onwards, may I point out a small misprint in Amendment No. 99? In the case of both the sickle-leaved hare's-ear and the small hare's-ear the apostrophe should appear before and not after the "s".

Lord Sandys

My Lords, I am obliged to the noble Lord, Lord Kilbracken, and, with the leave of the House, I think I should say that, although we had thought that we had every comma in the right place, clearly we must bow to his close inspection of the Marshalled List.

The Deputy Speaker

My Lords, if I may, I will put these amendments en bloc; that is, Amendments Nos. 95 to 109 with the manuscript amendment put by the noble Lord, Lord Kilbracken.

On Question, amendments agreed to.

Lord Sandys moved Amendment No. 94:

Page 53, line 30, at end insert— ("NOTE. The first column of this Schedule, which gives the common name or names, is included by way of guidance only; in the event of any dispute or proceedings, only the second column is to be taken into account").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

12.11 a.m.

Lord Melchett moved Amendment No. 109A: Page 13, line 31, at end insert ("imports with the intention of releasing or allowing to escape, or").

The noble Lord said: This was an amendment I moved at Committee. Unless I got confused in the welter of papers that flowed between the Department of the Environment and myself since then, I think that this was something the Government agreed to consider, but it is not something I have had a letter about. I could be wrong on either or both counts. So far as I know, it was something that was going to be considered, but I have not yet had information on it. I hope that one of the noble Lords opposite will be able to give me that information now. To repeat the point, we are dealing in Clause 13 with the restriction on importing things liable to be a menace or a pest or both to agriculture or to existing wildlife in this country or to some other interests. The clause as drafted makes it an offence when somebody releases one of these noxious or dangerous or undesirable creatures into the wild. It does nothing about the problem at the point of importation. It has always seemed to me and, I gather to the NCC, whose excellent document on imports led to this provision (or was one of the things which led to the provision in the Bill) that one ought to look at the problem at importation.

There are a large number of restrictions on importing, particularly disease control exercised by the Minister of Agriculture; but it would be useful to have a specific provision in the Bill which makes it clear that it was illegal to import something into this country with the intention either to release it or to allow it to escape, unless one has a licence. I gave a hypothetical example at the Committee stage. It is possible that somebody would either declare their intention of releasing something which was dangerous before importing it or it would become clear from documentary evidence which became available that somebody was importing something with the intention of releasing it even if they had not publicly admitted the fact.

I would remind the Government that one of the cases brought in this country under the Endangered Species Act came to a prosecution because of information gained in Canada. It is possible that documents might turn up in the United States under the Freedom of Information Act which showed that somebody was importing something into this country with the intention of releasing it. If they had it in this country with that intention, under the provisions of the Bill you would not be able to prosecute them until they had let it out. That seems ridiculous. It would be sensible to have a power. It is not likely to be used frequently, if at all. But it seems sensible to have the power to prosecute if they were guilty of importing it with this intention. I do not think that there is any doubt about the undesirability of the thing which the amendment strikes at. That is accepted by everybody including the NCC. I hope that this amendment, now that the Government have had time to think about it, will prove acceptable. I beg to move.

Lord Sandys

My Lords, the purpose of Lord Melchett's amendment is clear. I can assure him that we have considered this again since the Committee stage. He said that he had not received a letter about it. I do not know precisely the background of what correspondence he hoped would take place upon it. I think perhaps I should say this: it is the Government's view, however, that anyone who is determined to release creatures to the wild for which he would otherwise require a licence is not likely to declare such an intention on import. However, I think we can meet the noble Lord's point under the Endangered Species Act, by asking on the application form for import, what is the purpose of the import and particularly whether release into the wild is intended. This will have the effect of reminding importers of the constraints, and a false declaration under the Endangered Species Act application will also render the licence-holder subject to prosecution on that count. In view of this assurance, I trust the noble Lord will be prepared to withdraw his amendment.

Lord Melchett

My Lords, I shall withdraw it. It goes some way to meet the point, and I am grateful to the noble Lord for that. It does not help with something not on the convention, which is not subject to the Endangered Species Act licensing procedure. Things that are not covered by that, that are going to be dangerous to release in the wild, will probably be covered by some disease control restrictions like restrictions on things likely to spread fowl pest, rabies or something else. Although it would be possible to think of some fish which would be highly undesirable to release in British fresh waters but which would not be under the convention. They could be imported and released and they could decimate trout or salmon stocks and would not come under the noble Lord's assurance. I still think that there is some point in this amendment and maybe the Government could think about that again and, if not here, perhaps in another place. The noble Lord has gone some way to meet this and I do not want to delay the House now. I should like the Government to consider what I have said again. Maybe they could write to me at some point and, if not before Third Reading, then shortly after. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 110:

Page 13, line 38, leave out subsection (2) and insert: ("(2) Subject to the provisions of this part, if any person plants or deliberately assists to grow (a) any plant which is included in Part II of Schedule 8; or (b) otherwise than in cultivated ground any species or strain of plant which is of a kind which has not for a period of 50 years preceding the passing of this Act been ordinarily growing in Great Britain in a wild state, he shall be guilty of an offence")

The noble Baroness said: My Lords, this is again a matter of enforcement. The clause as it stands is unrealistic and unenforceable. In Committee, I moved that subsection (2)(a) of the clause which makes it an offence to cause to grow in the wild any plant which is of a kind which does not ordinarily grow in Great Britain in a wild state should be deleted. This was not because I want to encourage the introduction of alien plants into the British countryside. My reason for moving the deletion of this prohibition was that it would really be quite impossible to enforce it. It seems to me to be unwise—and, indeed, futile—to lay down provisions, as happens again and again in this Bill, which simply cannot be implemented.

The virtual impossibility of enforcing many of its most praiseworthy provisions is, as I said when I was speaking about Clause 12, one of the crying weaknesses of the Bill. The reason why the subsection as drafted is unenforceable and so no more than pure window dressing, is that the terms "in the wild" or "ordinarily grow in Great Britain in a wild state" are capable of a wide variety of interpretations. In Committee I gave (in cols. 1159 and 1160 of Hansard for 3rd February) at least six examples of the questions—the very practical questions—that might arise on this score. I mentioned the tree lupin (used in the reclamation of china clay pits) and the common rhododendron or gaultheria. Are these to be considered ordinarily growing? They are not native plants but they are now established.

The Minister agreed that the terms were almost impossible to define in words but said any doubts would have to be resolved by decisions of the court. But can he really believe that amid such a cloud of uncertainties any prosecution would ever be brought? The subsection is not even a paper tiger; it does not even seem to have teeth or claws.

I am now trying again. My amendment makes some attempt at definitions. For "in the wild" I have substituted "otherwise than in cultivated ground". I suggest a plant must have been in Britain for at least 50 years before it can be said to be ordinarily growing here and that something that has been growing for 50 years is something that could be proved in court by botanists and scientists. For the much too vague expression "kind of plant", I have proposed "species or strain of plant". One of the most dangerous and insidious kinds of introduction is where a supposedly British plant is offered in the form of seed obtained from a foreign source: for example, there are now on the market so-called "wild" seeds of the oxe-eye daisy and the bird's foot trefoil. Some of the seeds come from New Zealand, where these plants, though they can only be included under the same specific name as British ones, are very different both in their appearance and their genetic makeup. To sow them here is to run the risk of contaminating our native stocks.

My amendment is a cockshy: it may well be that the definitions may be made even sharper, but there is a very real problem. Unless the Government are prepared to do something we shall have produced a nonsense. I beg to move.

Lord Kilbracken

My Lords, your Lordships will notice that I have put down the next amendment, No. 111, which proposes the leaving out of lines 40 and 41, as did my noble friend's amendment at Committee stage. I put down a similar amendment at that stage though I never moved it. I have listened with great attention to what my noble friend has said in moving her amendment. My feeling is that it does not go far enough. It does not remove the extraordinary situation that seems to arise from Clause 13(2)(a). I do not understand why the Government have found it necessary to put down this provision. It is as though they had put down a provision about animals and said in general terms: "We should not allow animals which are not indigenous to this country to escape". Then they said, "Let us put down one for plants"—and this is the result. I do not know why it is necessary. There may be plants of a particularly unpleasant character listed in Part II of Schedule 8. I do not object to their being included or to any more being added to the list so that the growing of them in the wild would be prohibited; but I simply do not know what plants there are which do not, ordinarily grow in Great Britain in a wild state which the Government want to discourage or which my noble friend wants to discourage in her amendment. It seems to me to be fraught with the most extraordinary difficulties; and I should like to give one or two examples.

My noble friend has referred to the difficulty of knowing what is meant by "in a wild state". I take that to mean that it is something which reproduces itself, not something planted by man which reproduces itself from year to year. Let us for a moment consider forest trees. Trees, of course, are planted and would come under the provisions of this clause. But as most noble Lords will know, there are certain trees that reproduce themselves by natural regeneration: almost all hardwoods, birch, alder, sycamore, beech to a certain extent, hornbeam to a certain extent and the very occasional oak. I suppose these can be said to grow "in a wild state". But certainly so far as conifers are concerned, in this country practically no conifers grow "in a wild state". They will grow only where they are planted. They are cut down and new trees planted. Therefore it cannot be said that conifers are growing "in a wild state". But they are planted and, as far as I can see, the provision in Clause 13(2)(a) would prevent the planting of Norway Spruce, Sitka Spruce, the Douglas Fir or any other normal forest trees. Similarly, any flower that grows from a bulb does not spread itself by a scattering of seeds. You simply put in the bulbs and they multiply. The plant goes on growing at that place where the original bulb was put down. It is not growing in a wild state.

I simply do not understand what the Government are getting at in this proposal, whereby it would become illegal to plant in the wild—that is to say, outside your own garden or along the edge of a woodland or a meadow—any plant, such as the narcissus family, the snowdrop family, the tulip family or the crocus family, which grows from bulbs. They are growing there only because they have been put there. They are not growing in the wild. I am not sure about fields that have been ploughed and sown with perennial rye grass, timothy cocksfoot or any other grasses that are put in, because they are not growing in the wild. Perhaps that is a crop. I do not know whether it would be possible to do any reseeding of grassland.

My noble friend mentioned rhododendrons, azaleas, laburnums, cherries and any ornamental shrubs which do not grow in the wild. If your Lordships want to plant them along the edge of your woodland, I do not see how it can be argued that it will be legal to plant any of these. Since I cannot envisage, with any plant which does not ordinarily grow in a wild state, any objection to anyone planting in the wild, then my own solution as I have put it down in Amendment No. 111 is to leave out lines 40 and 41 altogether. If there is any reason why that would be objectionable, I very much hope that the noble Lord will be able to tell me what it is.

Lord Beaumont of Whitley

My Lords, I am certainly grateful to the noble Lord, Lord Kilbracken, for pointing out that the emperor wears no clothes. I myself thought he was wearing no clothes, but I did not like to say so, because I am not as knowledgeable as the noble Lord on this subject. The noble Lord has pointed out where the Government's provisions are clearly inadequate, and—this is the main point—that there really is not enough good reason for the kind of measure which they are trying to introduce here. They should be able to have a schedule of plants which they can ban as they discover—and, occasionally, it may happen that we shall discover only through sad experience—that certain plants are harmful. That is absolutely necessary and it is a very good thing that the schedule should be here.

But as the noble Lord has pointed out, the whole of the countryside is full of plants which have been imported and which are planted time and time again. What is more, if you look out of a railway carriage window you see, time and time again, plants which have escaped from gardens and which have colonised in the wild. A lot of them come from foreign strains and they are a definite asset. People differ very strongly on whether the rhododendron should have been imported into Britain. I understand that it existed about 40,000 years ago before the Ice Age, so how far back you have to go before you get a plant which is native is a debatable question. But the introduction of the rhododendron pontica into this country—and down in the West Country you have the rhododendron with red blossoms—has given us one of the most beautiful plants that we have in our countryside. I think that the Government ought to make out a better case for what they are trying to do, and I wholeheartedly support the amendment of the noble Lord, Lord Kilbracken.

12.30 a.m.

Lord Sandys

My Lords, I have listened with interest to the reasons given by the noble Baroness in her amendment and also to the speeches by the noble Lord, Lord Kilbracken, and the noble Lord, Lord Beaumont of Whitley. I regret to say the Government must oppose the amendment. However, I can offer some comfort in a form of words: "deliberately assist to grow" is possibly an improvement on the words "otherwise causes to grow" which are included in Clause 13(2) as drafted.

We shall consider the matter further and bring forward an amendment, if appropriate. The form of words suggested for Clause 13(2)(a) is similar to the existing words. However, the reference to cultivated ground is defective, in that any area, however small—for example, one inch square—even if in wild country is cultivated for and cleared for planting. The concept of a 50-year naturalisation period is interesting, especially after what the noble Lord, Lord Beaumont of Whitley, said, extending this period of time for the possible reintroduction of a species.

The philosophy behind the compilation of Schedule 8 lists, on the animal side, originally exotic creatures established in the wild in Great Britain for very long periods indeed but of which further introductions are considered to be inimical to the ecological balance. Even so, no land species of plant is at present listed in Part 2 of the schedule. It is important that the principle should not be breached, that all wild plants in the United Kingdom are treated as native unless listed in Schedule 8.

As the noble Baroness has said, we acknowledge that there are difficulties in enforcing Clause 13(2) but would stress the obvious dangers of injudicious introductions and believe that the clause as drafted, subject to the point I have made about "deliberately assist to grow", is the best way of providing safeguards against the serious abuse. All the plants mentioned by the noble Lord, Lord Kilbracken, in his very interesting speech can be seen growing in the wild here. Both the noble Baroness and the noble Lord, Lord Kilbracken, have greatly extended the anxiety which the House undoubtedly has about the nature of this clause. I would be prepared to take it back to re-examine this particular amendment and the problems thrown up by the speeches concerned.

Lord Melchett

My Lords, we are in danger of making ourselves a laughing stock, if I may say so bluntly to the noble Lord, Lord Sandys. There are one hundred and one different plants which do not grow ordinarily in the wild which noble Lords in all parts of the House will personally have been responsible for planting in the wild. I am quite happy to admit that if this goes through I am going to be due for about a £1,000 fine, and I imagine that the total in your Lordships' House will run into many hundreds of thousands, if not millions of pounds. It is ridiculous. All of us have been responsible for planting things which do not ordinarily grow in the wild: trees, shrubs, bulbs of all different kinds. These will include some new, cultivated form of snowdrop. I have some giant snowdrops at my home in London. I am very keen to put some of those snowdrops into my woods in Norfolk because they flower for much longer and look much nicer and are much larger than the wild snowdrop. That will land me with a £1,000 fine, minimum, which is an absurdity. It simply does not work. Even if it does not ban the planting of Italian rye grass, which I suspect it does, it certainly bans the planting of any new strain of Italian rye grass if any of it falls on a hedgerow, or on a woodland ride, or somewhere which is not a cultivated field. I am seriously worried as a conservationist that we shall make ourselves look ridiculous if this sort of provision remains in the Bill.

I would suggest to noble Lords that we should now take out (a), as my noble friend has suggested, and then at Third Reading, if the Government have a sensible alternative to come back with, they will be at liberty to introduce it. But if they have not, at least we shall not all look like complete "charlies". It seems to me that the Government have approached the question of plants from the completely wrong point of view. I say this to put it on the record so that the Government can think about it. First, they should have drawn up a schedule of really dangerous plants, which none of us want to see planted in this country, wherever it may be: whether in cultivated or uncultivated land, in gardens or somewhere else. Japanese seaweed is a prime example of that. It seems to me that the most strict controls could have been introduced, wherever it was planted, and indeed for my own part on introductions as well, so that importing Japanese seaweed would be illegal without a licence. I cannot see why that should not be the case and then we limit the plants schedule to really established dangerous things which none of us wants to see imported and released in the wild, or indeed into anybody's garden in this country.

You then look at the question of introductions in the wild from quite a different point of view. Besides covering the schedule points that we have agreed upon, you would then look at the question of wild plant seeds and the giving of advice on the packets on where it would be desirable to plant those. You leave all this business of cultivated plants—roses and daffodils and snowdrops and crocuses and rhododendrons and all the rest of it—out of the Bill, because if we try to include them it will be absurd. I hope I have not gone on too long, but I feel strongly that we shall make asses of ourselves if we do not do this. I think my noble friend would agree that our amendment is probably not entirely above criticism, but we should accept the amendment tabled by the noble Lord, Lord Kilbracken, and then if the Government can think of some sensible thing to do they should come back and tell us at Third Reading.

The Earl of Caithness

My Lords, if I may clear up one point with the Government, if I were to go and plant the South American beech—the nothofagus—which is probably the most enlightened thing that some foresters are doing in view of the beech plant disease at the moment, am I guilty, under the Bill as it stands?

Lord Sandys

My Lords, I should have to take advice on that but my impression is that it appears to run counter to the Bill as drafted.

Baroness David

My Lords, I think enough has been said to let us feel that the Government are convinced that there is something rather seriously wrong with this part of this clause. I am quite prepared to agree that the amendment I moved was not perfect, either, so I am pleased to withdraw it, on the understanding that the Government will seriously look at this in the way suggested by my noble friend. I myself would be quite happy to go along with Lord Kilbracken's amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken moved Amendment No. 111: Page 13, leave out lines 40 and 41.

The noble Lord said: My Lords, I have already spoken to this amendment, and I must admit that I was surprised by some of the things that the noble Lord said when he replied to my noble friend. He sought to give the impression that none of the examples that I had given of plants that we all grow in the wild, although they do not exist in the wild state, would not be covered by this Bill. But he gave no reason for taking that point of view. It seems to me that there cannot be any doubt that in every case that I gave—except possibly the different grasses growing in meadows—these do not ordinarily grow in Great Britain in the wild state, and that a person would be causing them to grow.

Furthermore, he was not able to give me a single example—perhaps he can now where the Government would have any objection to a particular plant growing in the wild state which does not ordinarily grow there. Even if there is some very occasional example where that happens it is very much better to put it in Part II of Schedule 8, rather than having this all-embracing paragraph (a). Therefore, I want to ask the noble Lord whether he can give any example at all where the Government would not wish a plant of this kind to be grown in the wild state. I beg to move.

Lord Sandys

My Lords, Schedule 8 is designed only to ensure that further specimens of species already introduced into the wild in Great Britain are not introduced without full evaluation of the likely consequences. If subsection 13(2)(a) were to be deleted there would be no general control of the introduction of wholly alien species which the Government are obliged to introduce under the Berne Convention, and indeed wish to do in order to conserve the existing ecological balance.

I cannot accept the amendment of the noble Lord, Lord Kilbracken, and I think it would be unwise if I were to quote any species of which I personally have knowledge but which I have not verified with either the Government's own sources of information or indeed private sources which may be outside the Government's remit. I cannot, I regret, go further at this stage, and I call on the noble Lord to withdraw the amendment if he feels so able to do.

Lord Kilbracken

My Lords, surely it is preferable that any new species that they want to ban should be put in Part II of Schedule 8, rather than having a blanket provision which covers all forms of plant that do not normally grow in the wild. I have listened with great care to what the noble Lord has said, but I cannot see that he has made out any grounds whatever for the wording of this clause as it stands. I think it is the feeling of the House that it is an unnecessary provision, and I beg to move.

On Question, amendment agreed to.

[Amendment No. 111A not moved.]

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

12.42 a.m.

Lord Stanley of Alderley moved Amendment No. 111B:

Page 54, line 25, at end insert—

("Rabbit

Oryctolagus cuniculus").

The noble Lord said: My Lords, there is an error in this amendment as printed on the Marshalled List in that page 55 "should read" page 54 The reason for this amendment follows a question I put in Committee, in col. 1166 on 3rd February. Since then I have had a reply to my question from my noble friend Lord Avon which I am afraid I cannot understand. As I understand it, the species on Schedule 8 are not allowed to be brought into the British Isles from outside. But I am not clear whether it is illegal to transport species in Schedule 8 from one part of the British Isles to another.

From the letter I received from my noble friend I got the impression that the answer was yes, in which case should not the rabbit be put on Schedule 8, because it would then prevent the introduction of the rabbit into one part of the British Isles from another? As the Bill stands, should an area become clear of rabbits there is nothing to prevent someone from bringing a rabbit into that area from another part of the British Isles. Perhaps I should say that I had it in mind to add the whole of the pests schedule for birds, plus a number of animals, to this amendment, which to my mind is logical. Maybe my noble friend will say that such an action is totally nonsensical. I look forward to some elucidation. I beg to move.

Lord Sandys

My Lords, I have not in front of me the copy of the letter sent to my noble friend Lord Stanley of Alderley. I am afraid I cannot give him immediate elucidation, though I well understand that it may have caused some anxiety. Although the rabbit has been established in Britain for many centuries, and is believed to have been introduced into this country in Norman times, I agree with my noble friend that it is precisely this sort of animal whose introduction should be controlled. I should therefore be pleased to consider the amendment.

Lord Stanley of Alderley

My Lords, I am very pleased to hear that reply. I hope, perhaps, that my noble friend will be able to write to me before Third Reading so that I know what to do before that stage.

Lord Melchett

My Lords, before the noble Lord withdraws the amendment I would be very interested to have a copy of the letter—if the noble Lord, Lord Sandys, could take that on board—because I have a lot of sympathy with the noble Lord's amendment.

Lord Sandys

My Lords, with the leave of the House, I think that I should first assure the noble Lord, Lord Melchett, that correspondence will certainly be copied to him. In reply to my noble friend Lord Stanley of Alderley, my noble friend did ask about translocation—the moving of species from one part to another. Clause 13 does not cover translocation in this country.

Lord Stanley of Alderley

My Lords, I thank my noble friend again. I must say that from the letter which I received I thought that it did do so. However, my noble friend is going to write to me. I am glad that other people are in the dark, too, as regards this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 112:

Page 54, line 39, at end insert— ("NOTE. The first column of this Schedule, which gives the common name or names, is included by way of guidance only; in the event of any dispute or proceedings, only the second column is to be taken into account.").

The noble Earl said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 112A not moved.]

Lord Melchett moved Amendment No. 112B:

After Clause 14, insert the following new clause: (". The Secretary of State shall, within six months of the† passing of this Act, Restriction on import of live animals, make an order under section 5 of the Endangered Species Act 1976 restricting the general import of all live animals to the limited number of ports and airports specified in the Order.").

The noble Lord said: My Lords, I beg to move Amendment No. 112B where we stay with imports, but return to a subject which noble Lords on all sides of the House have discussed a number of times, particularly when the Endangered Species Act was going through your Lordships' House in 1976 and beforehand and at the Committee stage. We return to the question of the restriction or control of the import of live animals. There is a provision in the Endangered Species Act 1976 which allows the Secretary of State to make an order under Section 5 of that Act to restrict the import of animals to certain ports and airports, and those should be specified in the order. We had a long debate on this in Committee and I do not want to repeat it all, but I should like to summarise the points, first, in favour.

It seems to those who have been concerned about the working of the Endangered Species Act that the only way of ensuring effective control at the point of entry is by having some restriction on the ports and airports through which live animals come into this country. In that way the customs officers at those ports and airports can build up expertise and will be able to spot the usual form of illegal import which is one or two rare and endangered species, which it is illegal to import, hidden among a number of more common species which it is legal to import and for which no licence is required. That sort of offence will only be spotted by experts, and customs will only become expert about this matter if there are a limited number of ports and airports through which live animals come.

Secondly, there is an animal welfare argument. We all know of the excellent work of the RSPCA at Heathrow, through which I would guess that something over 90 per cent. of all trade in live animals comes, and, of course, the handling facilities for animals at Heathrow are excellent and there are provisions there for dealing with all the sorts of abuses that inevitably crop up—for example, birds of prey hidden in the false bottoms of crates which contain common and non-endangered species and where the birds and animals attempted to be smuggled in in similar conditions will need a great deal of veterinary care when these abuses are discovered, not to mention the simple overcrowding of animals or birds in crates which is unfortunately still a fairly regular occurrence in this trade.

As I understood it, the arguments against this amendment in Committee were, first, that if simply those animals covered by the Endangered Species Act—that is, those listed on the CITES Convention—were restricted to certain ports and airports, roughly 50 per cent. of the trade in live animals would continue to come unrestricted through other ports and airports. The amendment that we have moved at this stage of the Bill meets that point by restricting the import of all live animals to certain ports and airports and, therefore, there would be a simple, straightforward system where the airports and ports listed in the order would be the only ones through which live animals could be introduced to this country, unless of course somebody applies for and gets a licence to import something at a particular place. The example which has been given to me is that of the polar bear going to the north of Scotland, in which case it would be undesirable for the poor bear to have to travel all the way to Heathrow and then all the way to Scotland. That is exactly the kind of thing that can be covered by the licensing provisions of the Bill.

The other major objection—and the noble Earl, Lord Onslow, among others, raised this in Committee—is what happens if something turns up somewhere it is not meant to turn up. What do people do with it? First, I would hope that the clear and simple proposal in this amendment will enormously reduce the likelihood of that happening, because all carriers—airlines and shipping companies—import agents and everyone else concerned will know exactly which ports and airports it is legal to bring live animals into, and if they attempt to carry an animal elsewhere they will know that the animal will inevitably be impounded. That is the first answer to the problem.

The second answer is that this is already a problem. There are a number of restrictions on the import of live animals. Anything that is likely to carry fowl-pest or similar diseases of poultry has to go into quarantine under MAFF disease control regulations. If, for example, a pheasant is imported from India, China or South-East Asia and goes to a port to which it is not meant to go, and not into quarantine facilities, it has to be seized. Anything likely to carry rabies has to go through one of the rabies ports, and if that animal goes to a port not covered in the rabies order it, again, has to be seized and impounded and put somewhere in quarantine until it can be dealt with.

These problems exist at the moment. There are, in fact, a large multitude of controls on live animals. This amendment would greatly simplify the position and, I would suggest, make problems of that sort much less likely to occur. This seems to be a simple, straightforward solution to a problem which has bedevilled our discussions of the Endangered Species Act since well before it was passed, and I hope it will be acceptable.

One further point that I should make is that the order provides for a great deal of flexibility. The Secretary of State can limit the number of ports and airports to those specified in the order. He could make a very wide list, if he was so minded, or a narrow list. He could, for example, limit this to rabies ports, and that would have the advantage of bringing it into line with MAFF's existing regulations on that. Or, if he felt that it was desirable, he could list a large number. But in any event, we would have a clear and straightforward system through which live animals were imported into this country. It would have animal welfare advantages, and enforcement advantages so far as the Endangered Species Act is concerned, and I hope that it will be acceptable to the Government. I beg to move.

The Deputy Speaker (Lord Aberdare)

My Lords, I understand that the words on the second line of the amendment: …Restriction on import of live animals should have been printed as a sidenote to the clause.

The Earl of Avon

My Lords, when speaking to this point during the Committee stage, my noble friend Lord Cullen told the Committee of the practical problems which result when animals turn up at a port not nominated in any order made under Section 5 of the Endangered Species Act. Those problems remain, but we have of course had a lot of thought given to this subject since the Committee stage.

Although I should like to ask your Lordships to reject this particular amendment on the grounds that we could not accept a restriction of this kind on farm and domestic animals, I should like to assure your Lordships that we believe we have now found a way of operating the type of restriction which this amendment seeks without a new and elaborate bureaucratic apparatus.

It is a complex subject requiring consultation with a surprisingly large number of interests. This consultation has started. What I can offer tonight is an undertaking that the Government intend to make an order under Section 5 restricting import and export of all live animals of a kind that may loosely be called wild animals to a list of ports and airports likely to be substantially similar to the present list used in the Rabies Order 1974. We will make provision for exceptional cases under licence and we will ensure that the welfare conservation of these animals is the key to to the rules that we make. We will not delay in taking this action, to which we are committed, but I am not able yet to say when the order will be made. I hope with this undertaking that the noble Lord will be happy to withdraw.

Lord Melchett

My Lords, that is excellent. I am grateful to the noble Earl. I am sure that all noble Lords, including the noble Lord, Lord Beaumont of Whitley, and others who have taken such an active part in this debate over the years, many more active than I, will be delighted at the news. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.56 a.m.

Lord Sandys moved Amendments Nos. 113, 114 and 115:

Page 54, line 45, leave out ("For") and insert ("After").

Page 54, line 47, leave out ("substituted the following sub-section— (3)") and insert ("inserted the following subsections— (3A) Subsection (3) above shall not apply in relation to an application of any description if the scientific authority concerned has advised the Secretary of State as to whether licences should be issued in pursuance of applications of that description and, if so, their terms. (3B)")

Page 55, line 12, leave out ("(3)") and insert ("(3B)").

The noble Lord said: My Lords, with the leave of the House, I should like to move Amendments Nos. 113, 114 and 115 en bloc, as all three are complementary. In Committee my noble friend Lord Cranbrook moved an amendment to retain in the 1976 Act Section 1(3) which obliges the scientific authority to be consulted on every application for a licence to import or export under the Act. The noble Earl, however, withdrew his amendment on our undertaking to put down a Government amendment which would reinstate Section 1(3) subject to a proviso that where a scientific authority had given general advice to the Secretary of State with regard to a defined category of application, and had informed the Secretary of State that they did not wish to be consulted on individual applications falling within that category, the Secretary of State should not be required to consult them. These amendments fulfil that obligation. I beg to move.

The Earl of Cranbrook

My Lords, as I said at the time that I withdrew the original amendment, I believe that this form of amendment will be widely welcomed by the scientific authority.

On Question, amendments agreed to.

Lord Sandys moved Amendments Nos. 116 to 120: Page 55, line 20, at end insert—

("Expenses of returning animals and plants to the wild

1A. After subsection (8) of section 1 of the 1976 Act there shall be inserted the following subsection— (9) Where the Commissioners of Customs and Excise incur any expenses in connection with or with a view to the return to the wild of any live animal or plant which is condemned or deemed to be condemned as forfeited, those expenses may be recovered, as a debt due to the Crown, from the importer or intending exporter of the animal or plant or any person possessing or having control of it at the time of its seizure; but any amount so recovered shall not exceed three times the value of the animal or plant at that time.

In this subsection expressions which are also used in the Customs and Excise Management Act 1979 have the same meanings as in that Act".").

Page 55, line 22, leave out ("At the end") and insert ("After the subsection inserted by paragraph 1A as subsection (9)").

Page 55, line 24, leave out ("(9)") and insert ("(10)").

Page 55, line 32, leave out ("(10)") and insert ("(11)").

Page 55, line 33, leave out ("(9)") and insert ("(10)").

The noble Lord said: My Lords, I should also like to speak to Amendments Nos. 117, 118, 119 and 120, which are consequential to this one. Article VIII of the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora calls for measures to prohibit trade in specimens in violation of the provisions of the convention. These measures include penalising the trade in specimens and provision for the confiscation or return to the wild state of such specimens. The article also allows for a party state to make provision for the reimbursement of expenses incurred as a result of the confiscation of a specimen traded in violation of measures applying the provisions of the convention.

In the United Kingdom, the Commissioners for Customs and Excise have the power, under the Customs and Excise (Management) Act 1979, to dispose of goods condemned by a court or deemed to have been condemned in the absence of a claim against forfeiture, in such a manner as they care to direct. They do not, however, have the power to reclaim the expenses incurred in the return of a specimen to the country of export. In certain cases, especially when the specimens are live and of a comparatively rare species, there is a good conservation reason for arranging the return of animals to their country of origin.

It is reasonable for the cost of that return to fall on the person or persons who have attempted to import such animals illegally. This amendment would enable Customs to seek reimbursement of their expenses in these circumstances; although, in conformity with common practice in such an indemnity provision, it is limited. This limit is three times the market value of the consignment, which value must at least be the cost of shipping it to this country in the first place. I am grateful to my noble friend Lord Chelwood, whose amendment in Committee suggested the need for these powers. I beg to move.

On Question, amendments agreed to.

The Deputy Speaker (Lord Aberdare)

My Lords, Amendment No. 121 has been wrongly marshalled. The next amendment is No. 121 A.

[Amendments Nos. 121A and 121B not moved.]

1 a.m.

Lord Sandys moved Amendment No. 121: Page 56, line 46, leave out ("after") and insert ("of").

The noble Lord said: My Lords, this is a technical amendment to correct the wording of paragraph 5 of Schedule 9.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 122: Page 56, line 48, leave out from first ("words") to end of line 49 and insert (""1(2), (3) and (4), 2(4)" there should be substituted the words "1(2) to (4) and (10), 2(4), 4(1B)"").

The noble Lord said: This is consequential, my Lords, to Amendments Nos. 113, 114 and 115, which have been accepted. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 123: Page 14, line 27, leave out ("1 to 8") and insert ("1, 3, 5, 6(3), 7 and 8").

The noble Earl said: My Lords, with the leave of the House I will speak at the time same to the following amendments: Nos. 126, 128, 133, 136, 137 and 138. The first three amendments to this clause are of a purely drafting nature and do not alter the scope of the clause in any way. As to the rest, when we were preparing the amendment to the registration provisions in Clause 6 to replace the word "taxidermist" by "person", we concluded that inadequate provision had been made for the sale of birds, where the seller was not selling on a regular or frequent basis, for example where stuffed birds had been in a family for some time. The proposed sale would not necessarily be for any of the purposes listed in Clause 15(1). It also became apparent that a similar problem existed in respect of animals and plant.

We therefore considered including in Clause 15(1) and 15(2) a purpose called "the purpose of sale" but on attempting to draft an appropriate provision, concluded it would be too vague, too general and would not sit well with the other purposes. Our solution is to transfer the prohibitions prohibiting selling contained in Clauses 6(1) and (2), which relate to birds, and Clauses 9(3) and 12(2), which relate to animals and plants respectively, to Clause 15(3). Thus, actions which would otherwise constitute offences under those clauses may be licensed.

The licensing authority in all cases will be the Secretary of State. Though there are a number of amendments relating to Clause 13—introductions—they do not alter the position in the Bill as currently drafted but are necessary because of the other amendments. The amendments are consequent on the amendment which achieved this by amending subsection (3). Additionally, we have in mind a general licence or regulation to provide that anyone satisfying a dealer registered under Clause 6(2) that he was in possession of a bird before the Act came into force or that he obtained a bird from such a dealer—all such birds will be marked by the dealer—will not require a licence to sell the bird to the dealer, who will have the duty to record sufficient details as to allow enforcement checks to be made if required. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, in calling Amendment No. 123A I have to point out that if that amendment is agreed to I shall not be able to call No. 124.

The Earl of Avon moved Amendment No. 123A: Page 14, leave out line 33.

The noble Earl said: My Lords, I will with permission speak to Amendment No. 126A at the same time. Both amendments delete the words or facilitating transfers between such collection", in Clause 15(1)(d) and 15(2)(a) respectively. The words are obsolete by virtue of new provisions in Clause 15. I beg to move.

On Question, amendment agreed to.

Lord Donaldson of Kingsbridge moved Amendment No. 124A: Page 14, line 35, leave out ("providing") and insert ("taking gulls eggs for").

The noble Lord said: My Lords, we had a go at this in Committee, when we ended up in total confusion, and I ended in despair by withdrawing the amendment. I have brought it forward again, however, because it is clear that Clause 15(1)(f) is far too wide to remain in the Bill. It does not make sense. It makes it possible to take blackbirds and make pâté out of them, which is just the sort of thing we do not want people to have leave to do. "Four and twenty blackbirds baked in a pie" is out of date. I believe that under a new EEC directive the collecting of eggs will have to be controlled. The only form of food which reasonably could fall within paragraph (f) is that derived from the collecting of gulls' eggs. I think that this provision should state that, and that only, and leave out the rest.

At this time of night I shall not go into this matter any more fully. The provision simply will not do as it is; it cannot be left in this way. The Government have done nothing about it, and therefore I greatly hope that they will accept this very limited amendment. So far as I can see the amendment cuts out nothing that anyone wants to make legal, and it leaves legal the one activity which is acceptable; namely, the collecting of gulls' eggs under the limited authority which is insisted on by the EEC directive. I beg to move.

The Earl of Avon

My Lords, the noble Lord has bowled me a fast one on the point about making blackbird pâté, which I must confess is something had not thought of in relation to this particular amendment. The amendment seeks to allow the Secretary of State to issue licences for human consumption—for gulls' eggs only. As I said in Committee, while the Government will not issue licences that would go further than was allowed by the Protection of Birds Act 1954, as amended by the 1967 Act, the amendment, we think, is too restrictive. Subject to the statutory consultation procedures we intend to issue licences for the taking of lapwing eggs before 15th April, and the taking of young gannets on Sula Sgeir by the Nessmen. Neither of these traditional practices does any conservation harm, though in the case of lapwing licences it is unlikely that licences will be issued for areas where the bird is in decline and there is no justification in stopping them.

I should like to take back the question about the pâté, and make sure that eggs are not necessary in that regard. I should very much like to be able to include collection of the other eggs that I have mentioned. The other points are being dealt with in another amendment.

Lord Melchett

My Lords, I feel that my noble friend has an important point here, and that is why I put my name to the amendment. If the noble Earl is to look at this matter, perhaps I may make a couple of further points, and I hope that we shall be able to clear this up before the Third Reading. As I understand it, the EEC directive does not make any provision which allows for all birds or their eggs to be used for food. Consider the undesirability of this country having that kind of provision in our own legislation implementing the directive. If we are seen by the rest of Europe taking such powers, whether or not we are to issue licences is immaterial. People will look at the wording of the Bill when it becomes an Act. If the powers taken in it are as wide as they are currently, it seems to me inevitable that those countries in Europe which shoot song birds for the table, for food, to be put into cans, bottles, or whatever, will look at this provision and say, "Ah! bingo! That's how we can carry on doing what we have always done". The whole of the EEC bird directive would be undermined in one single, simple blow.

If the noble Earl wants to cover plover's eggs—the noble Viscount, Lord Massereene and Ferrard, is not present, but I think he was concerned about this at the Committee stage—not much of an alteration to the amendment would be needed to meet that point. I should personally need to take some advice on the taking of young gannets. I assume that they are taken for human consumption, though I find that hard to believe, I must say. I should have thought that they were quite inedible. But if that is what they are taken for, all right. Even so, if that is a legitimate activity, and if what have been mentioned are the only three points that we can think of, I should have thought that the Bill ought to cover them explicitly, and not go any wider; otherwise we really are going to drive a coach and horses through the provisions of the directive.

Lord Donaldson of Kingsbridge

My Lords, I am quite prepared to withdraw the amendment, on the basis of the terms that the noble Earl has put forward, so that there is a specific provision for the collecting of certain agreed types of birds' eggs only. As for the gannet, I think that that is a very odd point, and I hope that it will not be pressed, but if it is, it should be included in a separate subsection, and should not be mixed up with the eggs. But, on that understanding, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 125: Page 14, line 36, leave out from ("consumption") to end of line 37.

The noble Earl said: My Lords, this is another amendment to the same sentence, from which we remove the words or for poultry, ornamental ducks, ornamental geese or swans", which I must say I had hoped was going to satisfy your Lordships on this particular line until the previous amendment. However, I beg to move.

On Question amendment agreed to.

[Amendment No. 125A not moved.]

The Earl of Avon moved Amendment No. 126: Page 15, line 7, leave out ("9 to 12") and insert ("9(1), (1A) and (2), 11 and 12(1)").

The noble Earl said: My Lords, I spoke to this amendment when moving an earlier amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 126A: Page 15, line 14, leave out from ("collection") to end of line 15.

The noble Earl said: My Lords, I spoke to this amendment earlier. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 127:

Page 15, leave out lines 16 to 18 and insert— ("(e) for the purposes of photography; (f) for the purpose of preserving public health or public safety;").

The noble Earl said: My Lords, with the permission of the House, with this amendment I should like to speak to Amendments Nos. 134 and 135, which are consequential. This amendment transposes the purposes at Clause 15(2)(e) and (f). Amendment No. 134 provides that the licensing authority for new purpose (f) is the Minister of Agriculture, Fisheries and Food or the Secretary of State, and Amendment No. 135 provides for consultation procedures. They would bring the position for animals into line with that for birds agreed to by your Lordships' Committee. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 128: Page 15, line 25, leave out ("Section 13 does") and insert ("The following provisions, namely—

1. (a) section 6(1) and (2);
2. (b) sections 9(3) and 12(2); and
3. (c) section 13,

do ").

The noble Earl said: My Lords, this amendment is consequential on Amendments Nos. 123 and 126. I beg to move.

On Question, amendment agreed to.

1.13 a.m.

The Earl of Avon moved Amendment No. 128A: Page 15, line 28, at beginning insert ("Subject to subsection (4A)").

The noble Earl said: My Lords, with your Lordships' permission, with this amendment I shall also speak to Amendments Nos. 131A, 131C, 132A, 136A and 138A, which are consequential. A number of suggestions were made in Committee that we should be more specific in the Bill about the operation of these purposes which allow for the killing and sale of wild birds and wild animals. The consultation process related to licensing and the period of time for which licences should be valid. The Government accept that it is possible and appropriate to make more specific provisions, and these amendments do this. With this revision of Clause 15(9) by Amendment No. 135A, the Government Amendments Nos. 139 and 140 are not needed, and will not now be moved. I beg to move.

Lord Melchett

May I ask a point for clarification? I thought I heard the noble Earl say Amendment No. 135A, which does not exist, but it may be that I heard him incorrectly.

The Earl of Avon

My Lords, it is 136A. I think I may well have said 135A.

Lord Stanley of Alderley

I think my noble friend was also speaking to No. 131A. Is that not right?

The Earl of Avon

Yes, my Lords.

Lord Stanley of Alderley

There is one point I should like to raise here. As I understand it, after two years the licence will terminate. If the pest is still a nuisance, can my noble friend assure me that the system for renewing the licence will be simple and, indeed, will not cost anything.?

The Earl of Avon

My Lords, I cannot give a guarantee at the moment on the latter, although when we come to costs I think my noble friend will find my answer as satisfactory as it could be. Obviously, the renewal of a licence causes much less palaver than having a new licence, so I think I can give my noble friend an undertaking that if it is legitimate it will be done speedily.

Lord Melchett

My Lords, may I say that we very warmly welcome this amendment. Again, I think it is a very helpful clarification of the provisions in the Bill. Certainly I shall not be moving Amendment No. 128B, which was put down in the expectation that the Government amendments would not be put down. But the Government amendments meet my point rather better than mine does. I am really very grateful indeed, and I think it is a great improvement.

On Question, amendment agreed to.

[Amendment No. 128B not moved.]

The Earl of Avon moved Amendment No. 129: Page 15, line 30, leave out ("to all persons").

The noble Earl said: My Lords, we propose removal of the words "to all persons" as we have not been able to identify a situation where it would be justified to licence all persons to carry out an otherwise prohibited act. A licence would not normally be wider in scope than "authorised persons" and this counts as a class of person. I beg to move.

Lord Chelwood

My Lords, this amendment about terms on which licences are granted gives me an opportunity to put a question to my noble friend to clear up any doubts there may be about a minor point of some interest; that is, swan upping. As I understand it, swan upping is a process of catching young birds and marking them by notching their beaks. Swans "upped" on the Thames are wild, protected birds which normally could not be taken legally for upping or any other purpose. In the normal way, a licence would have to be issued under Clause 15(4). This is a unique situation and both the Dyers' Company and the Vintners Company are anxious that there should be no doubts about how they are placed under the amended law. Is it correct that because of the Crown royalty, the Dyers' and Vintners companies can continue their traditional swan upping activities without Clause 15 licences and without let or hindrance? This is my understanding, based on a letter from Mr. Hector Monro to the chairman of the NCC. I know my noble friend does not often up swans, but I hope he will confirm that what I have said is correct.

The Earl of Avon

My Lords, it is my understanding that there will be no problem for the Dyers' and Vintners companies and a licence could be issued under Section 15 if needed.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 130: Page 15, line 36, leave out ("such period as may be") and insert ("the period").

The noble Earl said: My Lords, on consideration of a recent case we have concluded that the present wording in Clause 15(4)(e) could be unsatisfactory because it would be possible by use of the powers in Clause 15(4)(d) to leave a licence without a period of validity. The amended wording prevents this from happening. I beg to move.

On Question, amendment agreed to.

The Earl of Onslow moved Amendment No. 131:

Page 15, line 39, at end insert— ("Provided that no such charge shall be made in respect of the grant of a licence—

1. (a) for the purpose of preserving public health or public or air safety;
2. (b) for the purpose of preventing the spread of disease; or
3. (c) for the purpose of preventing serious damage to livestock crops, vegetables, fruit, growing timber or any other form of property or to fisheries.")

The noble Earl said: My Lords, this amendment is to Clause 15 and it is there to suggest that the licensing charges should be waived, for instance, on the grounds of preservation of public health; for this would only be one public authority charging money to another public authority, which would mean people taking money out of one pocket and putting it into another of the taxpayers' pockets at a certain amount of expense. This would apply also for the purpose of preventing disease and I would suggest where we say at (c) "for the purpose of preventing serious damage to livestock et cetera" the person concerned who is applying for the licence will be under financial pressure, anyway, and that financial pressure should not be added to by charging him for the licence.

I think it can be argued that it is reasonable to charge a fee for the issue of a licence to things like falconry or aviculture or collection of wild birds. In other words, sporting or hobbying interest should certainly pay for a licence. Between public health authorities I think it would be unreasonable to charge for a licence. I beg to move.

1.20 a.m.

Lord Stanley of Alderley

My Lords, briefly I should like to support this. My feeling is that if the cost is very high there will be a terrible temptation not to apply for a licence. On the other hand, if the cost is very low the bureaucracy will not pay for the cost of the licence. So either way I reckon there should be no cost.

Earl Peel

I should like, my Lords, to support this. May I take this opportunity of asking my noble friend something on a point of interpretation? In Clause 15 I note that the word "livestock" is used on two occasions regarding licensing. In the original Bill the interpretation of licence included game birds. I notice that in the Bill we have in front of us it does not. I am wondering therefore why this is so. It would appear to me that it is no longer possible to apply for a licence for the protection of game birds. Earlier my noble friend Lord Burton made reference to the hen harrier. I think that I am right in saying that my noble friend Lord Avon assured us that a licence would be possible for the protection of game birds against the hen harrier if applied for. As I interpret the Bill as it has been redrafted this is not the case. I should be grateful if the Minister could give me his opinion on this.

The Earl of Avon

My Lords, if I may come first to my noble friend Lord Onslow's amendment, this is identical to one put down in Committee. I am afraid that I can add little to my remarks at the time. It is Government policy to ensure that they are not inhibited by law from making charges for the issue of licences which place additional costs on all taxpayers for the benefit of the few where such charges are appropriate. Charges will not necessarily be levied but the Government should not be restricted in their ability to charge an appropriate fee.

At this stage I think I can give an undertaking that there have been no decisions at all on this. It is an agreement that we should like to have. Having said that, we listened sympathetically to the points made by my noble friend and will feed them into the review of charging for licences which is not yet complete. I hope in the light of what I have said my noble friend will not press me.

I can also add at this stage that my noble friend the Minister of State for Agriculture Lord Ferrers has assured me that there is no intention to charge for licences issued under Clause 15(1) or (2) by his Ministry. My noble friend Lord Peel asked about harriers. It would not be possible to issue licences. This is the same as in the 1954 Act. It is not in our view appropriate to protect wild birds against predation by other wild birds. Your Lordships took, I understand, the same view in discussion in Committee. Captive game birds can be protected. That does not sound as though it ties up with what the noble Earl is saying I said earlier.

Lord Melchett

My Lords, it might be simpler if we considered just the amendment for the time being. Every farmer in your Lordships' House has considerable sympathy, particularly with (c) of this amendment. As a farmer, I should declare an interest before commenting on it. The licences under this are going to be issued by the Minister of Agriculture. I would have thought that farmers on both sides of the House could be reasonably satisfied that that department would take a sympathetic view to the problems which noble Lords opposite have raised.

I see that the noble Lord, Lord Stanley, is raising his eyebrows at that, but it seems to me that the Ministry of Agriculture in the course of their discussions on this Bill have been all too sympathetic to the farming point of view at times. I would have thought that we could have left it as the noble Earl on the Government Front Bench has suggested, which goes a long way to meet the point.

Viscount Thurso

My Lords, I am not clear at all what the noble Earl means by his reply. I thought when we discussed the Farne Islands we opened up this problem that if one species predates upon another it may need to be controlled for the benefit of the other species. I am not sure that that principle was allowed by the reply of the noble Earl, Lord Avon. I wonder whether he could explain it further.

Lord Melchett

My Lords, before the noble Viscount sits down, may I make the suggestion that one answer to this would be the removal of the species from the specially protected list, if it really was so numerous as to be affecting the population of some other species?

Viscount Thurso

But the situation I am envisaging is that, just as in the Farne Islands a particular situation arises where one species harms the habitat or survival of another species, so one might in certain areas take a protected species as being harmful to certain other species which live in that area and therefore allow control of the species which is protected over a wide area within a specific area where it is causing more harm than good.

Lord Donaldson of Kingsbridge

My Lords, as the noble Earl, Lord Peel, cannot speak again, may I say that the noble Earl, Lord Avon, did not answer his question. He wanted a definition of "livestock". The noble Earl gave me one in a letter a couple of days ago which I think would meet the case very well, if it can be found.

The Earl of Onslow

My Lords, I think I am allowed to speak again. I would accept totally the remarks of my noble friend Lord Avon about the Ministry of Agriculture and the licensing fee under (c) of our amendment. I should really like much stronger undertakings on the fact of one public authority charging another public authority for licensing, because this can be purely bureaucratic muddle. If the Ministry of Agriculture charges the Department of Health for killing some particular bird or animal which may be spreading some, form of disease, the only thing this is going to do is to charge the taxpayer for one civil servant passing a piece of paper across Whitehall to another civil servant. That is the first point. Secondly, could my noble friend give us some idea of what these licences might cost?

The Earl of Avon

With the leave of the House—

Noble Lords

No!

The Earl of Onslow

My Lords, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 131A:

Page 15, line 39, at end insert— ("(4A) A licence under subsection (1) or (2) which authorises any person to kill wild birds or other wild animals—

1. (a) shall specify the area within which, and the methods by which, the wild birds or other wild animals may be killed; and
2. (b) shall be valid for the period, not exceeding two years stated in the licence.")

The noble Earl said: My Lords, I have already spoken to this amendment with Amendment No. 128A. I beg to move.

On Question, amendment agreed to.

Lord Melchett moved Amendment No. 131B:

Page 15, line 39, at end insert— ("( ) The appropriate authority may not issue a licence under the foregoing provisions of this section unless they are satisfied that no other satisfactory solution exists.")

The noble Lord said: My Lords, Amendment No. 131A, which we have just accepted, goes a long way, as I have said, towards removing the worries a number of us had about licensing procedures in Clause 15; but there was one other point which came up at Committee stage and which is not covered by the Government amendment, and which I would hope would be acceptable. Noble Lords will remember that we had a debate on Committee stage on the effect of the wording of the EEC directive under which all this licensing has to be carried out. The noble Earl, Lord Avon, said that among the other points he was considering he would look at the possibility of why the Government had not used the direct words from the EEC directive anywhere in the clause. The exact words of the directive appear in Article 9, which says that member states may derogate from the provisions of Articles 5, 6, 7 and 8 where there is no other satisfactory solution for the following reasons …". It then lists the various reasons, which include public health and safety, air safety, prevention of serious damage to crops, livestock, forests, fisheries and so on; in other words, wording which appears either exactly the same, or more or less the same, in Clause 15.

It has been suggested that all that a farmer would need to do to get a licence to kill or control or any of the protected species would be to prove to the Ministry of Agriculture that the birds or mammals in question were, or were about to be, a pest in that farmer's locality. But that is not quite the position, because if that were the position that would clearly be a breach of Article 9 of the EEC directive. What has to be taken into account by somebody, whether the applicant or the person issuing the licence, is that no other satisfactory solution exists. In fact, it has to be taken into account by the person issuing, the licence.

This point has been recognised in remarks which both the noble Lord, Lord Bellwin, and the noble Earl, Lord Avon, made during the Second Reading debate. The noble Lord, Lord Bellwin, said on 16th December 1980, at column 984 of the Official Report, in introducing the Bill, that licences will be issued in accordance with a number of things, including the availability of alternative methods of preventing the damage. The noble Earl, Lord Avon, repeated that, saying, at column 1089, that one of the things that would be taken into account when licences were issued was the availability of alternative methods of dissuading birds, apart from killing them. Both the noble Lord, Lord Bellwin, and the noble Earl, Lord Avon, were simply outlining the position as it is under the directive which governs now the actions of this country and the licensing authorities under Clause 15.

It seems to me that it would be useful, rather than simply having those assurances in Second Reading speeches, to have the provision in the Bill. There does not seem to be any doubt that the wording used in this amendment does apply, because that is what the directive says. We shall have to report annually to the Commission on the implementation of the derogations under the directive, and presumably we shall get ourselves into extremely hot water very quickly if we have done anything which contradicts the wording in Amendment No. 131B. So I hope it will be seen as a useful clarification of the provisions in the Bill. My Lords, I beg to move.

The Earl of Avon

My Lords, as the noble Lord, Lord Melchett, said, the words that he proposes for inclusion in Clause 15 are similar to those found in the birds' directive. Unfortunately, when faced with our own lawyers, the answer comes out rather differently, because they found that the amendment is too vague, woolly and general for an Act of Parliament. The amendment could give rise to many interpretations. It would be an "all things to all men" provision, and it is difficult to see how for many purposes it will be possible to meet them in any satisfactory way. It sounds rather as though they had a look at it and found it all too difficult. But this is the truth of the requirements of the paragraph. Bearing that in mind we shall of course, think on what the noble Lord said; but I honestly do not think we can move very far to meet him.

Lord Melchett

My Lords, that may have been the view of parliamentary counsel, but how does that leave the licensing authorities? They are, because they are Government departments or agents of the Government, bound by the provisions of Article 9 of the directive, so that they have to interpret these words which are used in the directive. If they are found to be in breach of them, we shall be hauled up in front of the Commission, or whatever happens to a Government if they are in breach of the directive. If the words are vague and uncertain, then the Government should try to find some words which are not vague and not uncertain and put those into the Bill.

This must be implemented by the people issuing the licences, and both the noble Lord, Lord Bellwin, and the noble Earl, Lord Avon, said in introducing the Bill and in winding-up the Second Reading debate that it would be implemented by the licensing authorities. If that is the case, it surely must be useful to have these words written into the Bill. The noble Earl said that he would look at this point and I hope he will, because it seems a bit of a nonsense to have these words in Article 9 of the directive and to have Clause 15, which is implementing that article and which, in part, lifts straight from it, a lot of words which have not been objected to by parliamentary counsel. But when one comes to the bit which is important from the conservationist's point of view—this is meant to be a nature conservation Bill, among other things—immediately they get left out because they are vague or general, although the Government are explicitly committed, having signed the directive, to implementing them. If the Government have to implement them they must have worked out how to do so, vague and general though the words may be.

If the noble Earl will agree to look at the point before Third Reading and come back to me before then, I shall happily withdraw the amendment. I should like an assurance that we shall be able to look at this and, if necessary, discuss it between ourselves before the next stage of the Bill, because I think that it is important. If the noble Earl would care to nod, I should be very grateful. He has nodded. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.36 a.m.

The Earl of Avon moved Amendment No. 131C: Page 16, line 1, leave out ("may authorise any person to whom it is granted") and insert ("which authorises any person to take or kill wild birds or other wild animals may authorise that person").

The noble Earl said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Onslow moved Amendment No. 132: Page 16, leave out lines 22 and 23.

The noble Earl said: My Lords, this could be called the "stopping of Uncle Tom Cobbleigh and all "amendment. Subsection (7) on page 16 seems to allow an enormous amount of delegation by licence holders. It says: may be framed by reference to any circumstances whatever including, in particular, their being authorised by any other person". The object of my amendment, and that of my noble friends, is to prevent particular individuals or classes of person who have been granted certain permission under licence from delegating such permission to others. In this way, only those authorised under licence would be able to make use of it. The risk of improper use through wide delegation would be averted. It is important that permission should be given under licence and not delegated indiscriminately. I beg to move.

The Earl of Avon

My Lords, this was a point which my noble friend Lord Gibson-Watt raised in Committee. I had rather thought that at that stage I had satisfied him. I explained then that we have included the provision to give greater flexibility to the system and I quoted the example that it would enable us to make an arrangement, for instance with the British Trust for Ornithology to authorise its members to ring birds. The alternative is the present system of a mass of individual applications, with all the attendant bureaucracy which I know my noble friend does not like, and of course the waste of valuable Nature Conservancy Council resources. Avoiding this kind of bureaucratic nonsense is dear to the Government's heart.

I should stress that if a licence is given to a person it will not automatically be given to other persons at the same time. The licence would need specifically to state that the person or body licensed could authorise other persons to carry out the permitted action, subject to the terms and conditions of the licence.

I hope my noble friend will see that we shall be very specific and not use this power haphazardly, but it is a power which is required for specific technical reasons. Incidentally, I think noble Lords will find that Amendment No. 131A has also greatly strengthened this point. With those assurances, I hope my noble friend will see fit to withdraw his amendment.

The Earl of Onslow

My Lords, those assurances seem to be reasonably satisfactory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 132A: Page 16, line 24, after ("section") insert (""the agriculture Minister" means the Minister of Agriculture, Fisheries and Food or the Secretary of State").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 128A. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 133: Page 16, line 32, after ("(1)") insert ("or paragraph (a) or (b) of subsection (3)").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 123. I beg to move.

On Question, amendment agreed to.

1.40 a.m.

The Earl of Avon moved Amendments Nos. 134 and 135:

Page 16, line 35, leave out ("(f )") and insert ("(e)").

Page 16, line 38, after ("paragraph") insert ("(f)").

The noble Earl said: My Lords, I spoke to both these amendments with Amendment No. 127. I beg to move.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 136: Page 16, line 38, at end insert ("or a licence under paragraph (c) of subsection (3) which authorises anything to be done in relation to fish or shellfish").

The noble Earl said: My Lords, I spoke to this when I moved Amendment No. 123. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 136A: Page 16, leave out lines 39 and 40 and insert ("the agriculture Minister").

The noble Earl said: My Lords, I spoke to this with Amendment No. 128A. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendments Nos. 137 and 138:

Page 16, line 41, leave out from beginning to ("and") in line 44.

Page 16, line 45, after ("under") insert ("paragraph (c) of").

The noble Earl said: My Lords, I spoke to these two amendments when I moved Amendment No. 123. I beg to move.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 138A:

Page 16, line 47, leave out subsection (9) and insert— ("(9) The agriculture Minister—

1. (a) shall from time to time consult with the Nature Conservancy Council as to the exercise of his functions under this section; and
2. (b) shall not grant a licence of any description unless he has been advised by the Council as to the circumstances in which, in their opinion, licences of that description should be granted.")

The noble Earl said: My Lords, I spoke to this with Amendment No. 128A. I beg to move.

The Earl of Caithness

My Lords, there is one small point here in connection with subsection (9)(b). I think this is unduly restrictive on the Minister of Agriculture. What happens if there is a situation where the Council say, "We cannot advise you because this is a totally new situation"? Can the Minister go ahead and grant the licence, or does he say, "Well, you must come back with a better answer than that"? This is something which is giving some of us who are connected with farming a great deal of worry and perhaps my noble friend could take it a stage further.

Lord Melchett

My Lords, I do not see why it is giving some worry. I welcome this amendment. I was not going to say anything, but I was going to withdraw the next amendment in my name. It seems to me that this goes a long way towards meeting the worries—not by any means so far as I should like, but it is certainly a very welcome move. At Committee stage the noble Earl, and some of his noble friends, said that the Bill already required the Minister of Agriculture to consult the NCC about the licences he issued, and at that stage in our discussion it took quite a lot to persuade noble Lords opposite that the Bill did not actually say that. When the Government put in what they thought the Bill then said, it seems to be a bit rough for there to be a complaint about it. I wish this went a good deal further and required the Minister of Agriculture to consult with the NCC before they issued a licence. Indeed, I think we should have gone a great deal further than that and not had MAFF issuing licences at all. I really think the noble Earl, Lord Caithness, should not complain about this very modest improvement which really meets the case.

The Earl of Avon

My Lords, if I understood my noble friend's point correctly, he was slightly worried about an emergency or some new form of occasion which might arise. I do not think he need have any worry, but I will look at it again when I can read his comments on another day, and I will write to him if I have any doubts.

On Question, amendment agreed to.

[Amendment No. 138B not moved.]

Lord Melchett moved manuscript Amendment No. 140A: Leave out Clause 15.

The noble Lord said: My Lords, this is a very small point and will not take a moment. At the Committee stage we raised the question of keeping a register of licences issued under Clause 15 and the possibility of the public being allowed access to this register. I had a letter from the noble Earl which I thought quite reasonably pointed out—as he had done at the Committee stage—the danger of allowing people unrestricted access to a register of this kind because it might well help people who were disposed to steal, for example, falcons to find out where they were being kept. I therefore have not moved the amendment again, but what I wanted from the noble Earl was an assurance that reputable organisations, voluntary or otherwise, would be allowed access to the records of licences which would inevitably be kept. The kind of organisations I had in mind were those representing farmers and landowners, like the NFU and the CLA, those representing conservation interests, like the RSPB or the County Naturalists' Trust, those representing shooting interests, like WAGBI and so on. If the noble Earl can give an assurance that such organisations would be allowed access to these records when they had a legitimate interest, that would meet my worry entirely. My Lords, I beg to move.

The Earl of Avon

My Lords, I think I can give the noble Lord the assurance he wants, although I cannot say it would be a 100 per cent. assurance because one cannot guarantee that all the information would be available to all the bodies all the time. It is the Government's duty to act as an honest broker in the matter, and I can assure both those who confide in the Government and those who see this information as a necessary tool in their work of enforcement that we will uphold the public good in a way which both can agree would be the fulfilment of the purpose of licensing and the registration as laid down in the Bill. The Government see these registers as something to be used by the bodies such as those the noble Lord mentioned.

Lord Melchett

My Lords, I am very grateful to the noble Earl. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Enforcement]:

The Earl of Avon moved Amendment No. 141:

Page 17, line 39, at end insert— ("(1A) If a constable suspects with reasonable cause that any person is committing an offence under this Part, he may, for the purpose of exercising the powers conferred by subsection (1), enter any land other than a dwelling-house.")

The noble Earl said: My Lords, this amendment seeks to provide a constable with the power to enter onto land but not into buildings when he has reasonable cause to suspect an offence is being committed. For example, where a constable is walking down a country road and sees a man in an adjoining field shooting a protected bird it would give him the power to enter that field and apprehend the suspect—what in other context, is known as hot pursuit. I am grateful to the noble Lord, Lord Melchett, who put forward a similar amendment in Committee. I hope he will find ours more straightforward. I beg to move.

Lord Melchett

My Lords, I am grateful to the Government for this amendment, which meets the point fully.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 142: Page 17, leave out from beginning of line 42 to end of line 2 on page 18 and insert—

1. ("(a) an offence under section 1, 3, 5, 7 or 8 in respect of which this Part or any order made under it provides for a special penalty; or
2. (b) an offence under section 6, 9, 11, 12 or 13, has been committed.").

The noble Earl said: My Lords, this amendment extends the search warrant powers in the Bill in respect of birds to cover all special penalty offences, not merely offences in respect of Schedule 1 species—all of which are special penalty offences. It is entirely appropriate that the power to grant a search warrant should be available for all rather than some special penalty offences—and brings the position in line with that for animals—and I am grateful to the noble Lord, Lord Beaumont of Whitley, for suggesting this in Committee. I beg to move.

On Question, amendment agreed to.

Clause 19 [Summary prosecutions]:

The Earl of Avon moved Amendment No. 143: Page 18, line 11, at end insert ("or the taking of an egg of such a bird").

The noble Earl said: My Lords, this amendment corrects an omission in Clause 19, which is a new clause added to the Bill in Committee and extends the time limit on prosecution from six months to two years. We noticed after Committee that a reference to the taking of eggs had not been included. I beg to move.

On Question, amendment agreed to.

Clause 20 [Penalties, forfeitures etc.]:

The Earl of Avon moved Amendments Nos. 144 to 149:

Page 18, line 29, leave out ("sections 1 to 8") and insert ("section 1, 3, 5, 6, 7 or 8 shall be liable on summary conviction"). leave out lines 32 to 34 and insert ("to a fine not exceeding £1,000").

Page 18, line 35, leave out from ("case") to end of line 36 and insert ("to a fine not exceeding £200."). leave out lines 38 and 39 and insert ("under section 9 or 11 shall be liable on summary conviction to a fine not exceeding £1,000. (2A) Subject to subsection (4), a person guilty of an offence under section 12 or 16 shall be liable on summary conviction to a fine not exceeding £500.").

Page 19, line 1, leave out from ("to") to end of line 2 and insert ("a fine").

Page 19, line 6, leave out ("or (2)") and insert ("(2) or (2A)").

The noble Earl said: My Lords, if I may, I shall speak at the same time to amendments numbers 144 to 149. These amendments to Clause 20 are designed to adjust the penalty structure in the light of the views expressed during the Committee stage. Together they represent a fresh approach which, with your Lordships' permission, I will now explain.

We heard much in Committee about the need to provide adequate financial sanctions against the various offences. We were told that the value of certain species might, in certain circumstances, offer the prospect of illicit financial rewards greatly in excess of the available fines, and of the importance therefore of hitting the offenders' pockets. There was also a general feeling that while the protection of our wildlife heritage was of prime importance, the offences were not of the order of gravity for which imprisonment would be appropriate.

The Government have responded to these arguments, first, by proposing to increase the maximum fines for certain of the offences and, secondly, by removing the sanction of imprisonment. We consider that the penalty structure which would be established by the amendments is consistent with the preponderance of opinion in your Lordships' House and with the general provisions of the criminal law relating to penalties. In this last connection I should explain why we do not favour the term "statutory maximum" for specifying the maximum fine of £1,000 available for purely summary offences. The effect of the term would be to link that maximum fine to the provisions first introduced in the Criminal Law Act 1977 and now consolidated in the Magistrates Courts Act 1980 which enable the Home Secretary, in the light of changes in the value of money, to alter by order the maximum fine on summary conviction for offences which are triable either summarily or on indictment. These provisions do not apply to the fines for purely summary offences; they are confined to offences which are triable either way.

The background to that approach is that the Criminal Law Act 1977 established a standard maximum fine on summary conviction across the board for offences triable either way, which represents a clear dividing line between the powers of the magistrates' courts and the Crown Court. In order to preserve the integrity of that dividing line, the power was given to the Home Secretary to adjust it from time to time to accord with changes in the value of money. It is, of course, desirable that a similar arrangement should apply to the fines for purely summary offences but, in order to do this with consistency across the board, it will be necessary, first, to assimilate all the summary maxima to the four-point scale of summary fines—£50, £200, £500 and £1,000—established following the Criminal Law Act 1977. When that is achieved it will be possible to index link the scale and thus secure an orderly and cohesive adjustment to summary fines.

In the interim, we would prefer to avoid piecemeal index linking of summary penalties in individual legislation, since that would detract from the consistency with which, as a matter of principle, such a measure should be applied. There have been, as some noble Lords will be aware, exceptions to this policy but both the Merchant Shipping Act 1979 and the Companies Act 1980 dealt comprehensively with well-defined and self-contained areas of commercial activity in which a departure was justifiable. This Bill does not meet these criteria.

Against that background, the first amendment specifies more precisely in Clause 20(1) the clauses under which offences relating to birds are created. The second increases in Clause 20(1)(a) the maximum fine from £500 to £1,000 for the more serious offences related to wild birds. It also removes the sanction of three months' imprisonment. The third increases in Clause 20(1)(b) the maximum fine from £50 to £200 for the less serious offences against birds. This increase to the next point on the scale of summary fines is consistent with the increase proposed in Clause 20(1)(a).

The fourth amendment substitutes in Clause 20(2) the figure £1,000 for the term "statutory maximum" for reasons which I have already given. It then applies the maximum fine of £1,000 to offences in respect of animals in Clause 9 and 11. We consider that offences in respect of wild plants and making false statements to obtain registration or licences are of a lesser order of gravity and therefore the maximum fine for these offences has been maintained at £500 by the creation of sub-clause (2A).

The fifth amendment removes from Clause 20(3) the sanction of two years' imprisonment available on conviction on indictment for offences under Clause 13, which is concerned with control over the introduction of new species. The sixth is a consequence of the creation of sub-clause (2A) and merely makes an appropriate reference in Clause 20(4) so that offences in respect of wild plants may continue to attract the multiplier device. I apologise if I have spoken a little long on these amendments, but it is an important subject which we covered in some detail in Committee. I beg to move the amendments en bloc.

Lord Melchett

My Lords, I think that somebody should thank the Government for these amendments. We carried a vote on the amendment of the noble Lord, Lord Craigton, which made the point. The Government have changed it slightly, but I am sure that it will be acceptable. I think that the figures that they have come up with and the removal of imprisonment and so on—indeed the whole combination—do meet the points made on all sides of the House and have a great deal of support. I think that once again it is a major improvement to the Bill.

Lord Stanley of Alderley

My Lords, I should like to thank my noble friend particularly for the removal of the prison sentence, for which I asked. I hope that we shall all be able to pay all the fines that will be imposed for planting bulbs in the woods! I hope that my noble friend gets that right before Third Reading.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 150: Page 19, line 17, after ("any") insert ("vehicle, animal, weapon or other").

The noble Earl said: My Lords, the noble Lord, Lord Houghton of Sowerby, moved a similar amendment in Committee so as to make it clear that a court may confiscate. The Government agree that the position would be clearer if this is done. Additionally, as the noble Lord, Lord Melchett, said, it would be in line with the wording used in the Deer Act 1980. I beg to move.

On Question, amendment agreed to.

Clause 21 [Power to vary Schedules]:

The Earl of Avon moved Amendment No. 151: Page 20, line 4, leave out subsection (4).

The noble Earl said: My Lords, this is another of the amendments designed to tidy up the consultation procedures. Clause 21(4) is not needed because of the provision in Clause 25(2)(b). I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 152: Page 20, leave out lines 24 to 30.

The noble Earl said: My Lords, my noble friend Lord Craigton asked in Committee if Clause 21(7)—20(7) previously—could be re-drafted to make it clearer. Parliamentary counsel can see no way of usefully simplifying this provision which is simply an extension of Section 9(3) of the Protection of Birds Act 1954. However, he advises that since it is a statement of the obvious, it could be dispensed with and this we have chosen to propose. I beg to move.

On Question, amendment agreed to.

Clause 22 [Advisory bodies and their functions]:

The Earl of Avon moved Amendments Nos. 153 to 156:

Page 21, line 4, after ("it") insert ("or on which it considers it should offer its advice— (a)").

Page 21, line 5, leave out ("so far as it relates to the protection of birds").

Page 21, line 6, after ("or") insert ("(b)").

Page 21, line 7, after ("birds") insert ("or other animals or plants").

The noble Earl said: My Lords, with the leave of the House, I should like to move Amendments Nos. 153, 154, 155 and 156 en bloc. In Committee, the noble Baroness, Lady David, proposed an amendment which would make advice a two-way process. In addition to the Secretary of State requesting advice from the advisory body, the advisory body could approach the Secretary of State with advice. We undertook to take away this suggestion and arrange for a Government amendment. Amendments Nos. 153 and 155 are the consequences and in fact reflect existing practice. I beg to move.

Lord Melchett

My Lords, this is the last thing that I intend to say this evening. First, I should like to welcome this amendment, which is a major improvement again and meets a point a number of us made in Committee. Secondly, I think that it is appropriate at the end of a long day to thank the noble Earl, Lord Avon, for the many really considerable improvements that we have been able to make to the Bill during the course of the day, not always with his wholehearted support but very often with his wholehearted support and with a great deal of help. I should also like to thank the noble Earl, his colleagues and all his advisers for the enormous amount of hard work that they have had to put in in a very short time, with some extra difficulties yesterday, to produce all these amendments and to meet all the points that they have been able to meet. We really are very grateful indeed.

The Earl of Avon

My Lords, I also should like to thank noble Lords for their co-operation.

Lord Chelwood

My Lords, before my noble friend replies, it would be only right that someone on this side of the House also should tell him how very much we appreciate the skill, patience and understanding with which he has handled this Bill throughout this very long day. We are very grateful indeed.

Lord Beaumont of Whitley

My Lords, we, too, feel like that, but perhaps we should reserve our formal thanks until we reach the end of this stage.

The Earl of Avon

My Lords, I was rather thinking that everybody was getting far ahead of their guns. I, too, am grateful for the co-operation from the Front Benches opposite and from my colleagues who have taken on a great burden today.

On Question, amendments agreed to.

The Earl of Avon

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.