Wildlife and Countryside Bill [H.L.]

HL Deb 30 March 1981 vol 419 cc26-88

4.2 p.m.

Third Reading resumed.

The Earl of Avon moved Amendment No. 14: Page 6, line 38, leave out from beginning to ("shall") in line 40 and insert ("Subject to the provisions of this Part, if the owner or occupier of any land causes or permits to be done on that land any act which is made unlawful by subsection (1), he").

The noble Earl said: My Lords, with permission should like also to speak to Amendments Nos. 16 and 17, which are consequential. When, at Report stage, the noble Lord, Lord Melchett, moved his amendment, which was agreed by a small majority, he allowed that there might be some shortcomings in its drafting. While the Government, as the House knows, did not agree with the amendment, we have nevertheless undertaken the redrafting. I beg to move.

Lord Renton

My Lords, although this amendment and the others that go with it are necessary as drafting amendments, may I express the hope that the Government will in due course revert to their original and correct view of this matter? Under the present law, anyone who aids, abets, counsels or procures the commission of an offence is guilty. Those words are clear, adequate and well understood. But the words "causes or permits" are imprecise, confusing and can lead to injustice. Therefore, while accepting this drafting amendment now, I do so in the hope that the Government will try to persuade another place to do better than we have done.

Lord Melchett

My Lords, may I disagree with the noble Lord, Lord Renton? I think that this amendment rewords something which the House accepted at the last stage considerably better than the attempt that we made at it, and I would hope that, now that the Government have put down an amendment to this effect, it will be accepted. It does not go nearly as far as I wanted and it does not go as far as the noble Lord, Lord Beaumont, wanted—he moved an amendment on this matter both at Committee and at Report stage—but it seems to me to be a useful step. I think it is possibly to the credit of your Lordships' House, which must contain more landowners and farmers than certainly another place and possibly any other similar gathering of the same number of people, that the House has agreed to make an amendment which recognises the responsibilities of landowners and farmers. I think it is an excellent thing, and I am grateful to the Government for moving this amendment.

Lord Beaumont of Whitley

My Lords, I agree with the noble Lord, and I am grateful to the Government for having taken this on board. As the noble Lord, Lord Melchett, has said, while it does not go quite far enough, it was an important thing, I think, to try to close what was quite clearly a real gap in the law, or what could in practice turn out to be a real gap in the law, and we are grateful to the Government for going quite a long way to meet us.

The Earl of Onslow

My Lords, I should like to disagree very strongly with my noble friend Lord Renton, although on several of these points in this Bill we have been in agreement. I think this is a good amendment, and I am grateful to my noble friend Lord Avon for making the original amendment better. Furthermore, I should like to suggest to your Lordships' House that the position under the health and safety at work regulations is, I think, that if somebody does something—for instance, lifts somebody up on the front of a fork-lift tractor to enable him to do something which the health and safety at work people would get very cross about—then even if I am in your Lordships' House "rabbiting" on about something I could still be in serious trouble if it was done behind my back or even if it was done when I was at home and even though I may have given instructions that it should not be done. I think this particular amendment is a good thing, and I hope that my noble friend will disregard what my noble friend Lord Renton has suggested to him.

Lord Burton

My Lords, I must disagree with my noble friend Lord Onslow. I certainly agree with what my noble friend Lord Renton has said. "Permits" could mean "has not prevented". The amendment is clearly intended to make the employer liable for the acts of his employee. This would be tolerable, but as the amendment is at the moment drafted an owner of land could well be liable to blackmail. Anyone finding any chemical-impregnated bait which could have been set for the taking of a bird could have the owner and the occupier taken to court as they did not prevent the bait being set. Under these proposals, owners or occupiers could be placed, and are likely to be placed, in a most invidious position. Indeed, I believe there has already been a case of attempted blackmail, where a poisoned bird has been left near a keeper's house. Furthermore, not all employees are angels, and even employers who are completely innocent could be placed in an extremely invidious position.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 15: Page 6, line 42, at beginning insert ("Subject to subsection (3A)").

The noble Lord said: My Lords, I beg to move this amendment, and would speak to Amendment No. 72 at the same time. If I may repeat what I said earlier, I think there is a typing mistake in the Marshalled List and that these should be Amendments Nos. 15 and 15A. I think it is fair to say that the Bill is designed primarily to conserve and protect wildlife. It is not intended to be a means of introducing controls on fire-arms for other reasons. There is also the need to ensure greater consistency with the provisions which are to be found in Clause 11(3). As your Lordships are aware, the powers in Clause 11(3) limit the adding or omitting of methods of killing or taking of mammals to those for the purpose of compliance with an international obligation.

With these considerations in mind, the Government feel that it is right similarly to limit additions of firearms to the list of proscribed weapons in Clause 5 to those required under international obligations. This would still provide the necessary safeguard against new or improved firearms, and would not of course prevent the addition of other methods of killing or taking, such as chemicals, to which birds are particularly vulnerable. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 15A:

Page 6, line 46, at end insert— ("(3A) The power conferred by subsection (3) shall not be exercisable, except for the purpose of complying with an international obligation, in relation to any method of killing or taking wild birds which involves the use of a firearm.").

On Question, amendment agreed to.

The Earl of Avon moved Amendments Nos. 16 and 17:

Page 7, line 1, at end insert ("or subsection (2)")

Page 7, line 2, leave out ("by the accused").

The noble Earl said: My Lords, I have already spoken to Amendments Nos. 16 and 17. I beg to move them both together.

On Question, amendments agreed to.

4.10 p.m.

The Earl of Avon moved Amendment No. 18: Page 7, line 5, leave out ("mammals") and insert ("animals")

The noble Earl said: My Lords, with permission, I will speak also to Amendments Nos. 28, 30, 31, 32, 34, 36, 39, 41, 43, 44, 45, 47, 65 and 168. This is a series of amendments to replace references to mammals by references to animals. This meets the point which the noble Lord, Lord Houghton, raised at Committee stage, and which my noble friend Lord Cranbrook pursued at Report stage, that at some stage in the future we might incur an international obligation to protect various wild animals such as reptiles or amphibia, in addition to the birds and mammals for which the Bill presently provides, against the use of indiscriminate methods of killing. My Lords, I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 19:

Page 7, line 18, at end insert— ("(d) the use of any air weapon by an authorised person for the purpose of taking a bird included in Part II of Schedule 2;").

The noble Earl said: My Lords, this is consequential on Amendment No. 13. I beg to move.

On Question, amendment agreed to.

Clause 6 [Sale etc. of live or dead wild birds, eggs etc.]:

The Earl of Avon moved Amendments Nos. 20 and 21:

Page 7, line 32, leave out ("things falling within paragraph (a)" and insert ("any of those things").

Page 8, line 3, leave out ("things falling within paragraph (a)") and insert ("any of those things").

The noble Earl said: My Lords, with permission I will speak to Amendments Nos. 21, 23 and 48.

These are drafting amendments. I beg to move Amendments Nos. 20 and 21.

On Question, amendments agreed to.

Clause 9 [Protection of certain wild animals]:

The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers) moved Amendment No. 22: Page 11, line 17, after ("dead") insert ("wild").

The noble Earl said: My Lords, if I may, I should like to speak to Amendments Nos. 46, 59, 60 and 74. The principal amendment is in Clause 27 and the others are consequential. These are drafting amendments to clarify the distinction between birds and animals for the purposes of the Bill. I beg to move.

Lord Melchett

My Lords, I do not have any worries about the later amendments to which the noble Earl has spoken. But could he perhaps write to me at some stage and reassure me about this amendment which might be introducing a loophole, in that somebody could claim that the animal concerned was not a wild animal, although it was an animal to which it would otherwise be illegal to do what they were going to do. Because they could claim that it was bred in captivity, they would not be committing an offence. There is a similar problem in the part of the Bill dealing with birds and it has been met in some way. I saw this amendment only late this morning. I may not have made myself clear and I may be barking up the wrong tree in any case. My worry is that somebody will be able to say that this is not a wild animal, that it was bred in captivity, and that that would provide a loophole. It is not a major point. If the noble Earl does not know the answer now, perhaps he will write me.

Lord Beaumont of Whitley

My Lords, I cannot find anything in Schedule 5 which would need this exemption or which would benefit from being subject to this extra qualification. If the noble Earl is not able to answer now, it would be good to receive an explanation by letter; but I should have thought that we ought to have a verbal explanation now. On the face of it, it looks as though it is modifying something which not only does not need to be modified but which ought not to be modified.

Earl Ferrers

My Lords, I can understand the reason why the noble Lord, Lord Beaumont of Whitley, is in a quandary. I will try to help him. If he looks at Amendment No. 22 on its own, it appears to imply that there are some animals in Schedule 5 which are wild and some which are not. If the noble Lord addresses himself to Clause 27, which is Amendment No. 74, that is the definition clause and the point of the whole amendment is to define "animal" as meaning an animal other than a bird. It therefore excludes wild birds. That is the reason why the word "wild" is put in the place where it is. I think that that covers Lord Beaumont's problem. I think that also covers Lord Melchett's problem. He wags his head in dissent—which is not an unfamiliar posture for the noble Lord. If he is worrried about it, I will look into it and write to him.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 23: Page 11, line 23, leave out ("things falling within paragraph (a)") and insert ("any of those things").

The noble Earl said: My Lords, this is consequential. I beg to move.

On Question, amendment agreed to.

Clause 10. [Exceptions to s. 9]:

[Amendment No. 24 not moved.]

The Earl of Avon moved Amendments Nos. 25 and 26:

Page 12, line 3, leave out second ("or")

Page 12, line 7, leave out ("or").

The noble Earl said: I spoke to these two amendments with Amendment No. 1. I beg to move.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 27: Page 12, line 25, leave out ("bats") and insert ("a bat").

The noble Earl said: My Lords, this is a drafting amendment to make this subsection consistent with the rest of the Bill, where the singular is used. I beg to move.

Lord Melchett

My Lords, if I may bend the rules a little, may I take the opportunity to point out two printing errors in Clause 10? In page 11, line 39, I think that the words, "subsection (2) of Section 9" should read: "subsection (3) of Section 9". On page l2, line 19, "Section 15" should read "Section 16". I do not know whether these are errors which can be corrected when the Bill is reprinted. Perhaps the Government can look at them.

Earl Ferrers

My Lords, if the noble Lord wishes to bend the rules then perhaps I may be permitted to do so by saying that I will see whether the points he makes are valid.

On Question, amendment agreed to.

Clause 11 [Prohibition of certain methods of killing or taking wild mammals]:

Earl Ferrers moved Amendments Nos. 28 to 37:

Page 12, line 32, leave out ("mammal") and insert ("animal")

Page 12, line 33, leave out ("or")

Page 12, line 34, leave out ("mammal") and insert ("animal")

Page 12, line 40, leave out ("mammal") and insert ("animal").

Page 13, line 1, leave out ("mammal") and insert ("animal")

Page 13, line 5, leave out second ("or")

Page 13, line 7, leave out ("mammal") and insert ("animal")

Page 13, line 9, leave out ("or")

Page 13, line 11, leave out ("mammal") and insert ("animal")

Page 13, line 18, leave out ("or").

The noble Earl said: My Lords, these are consequential amendments. I beg to move.

The Deputy Speaker (Lord Alport)

My Lords, would it be your Lordships' wish that I move Amendments Nos. 28 to 37 en bloc?

On Question, amendments agreed to.

The Earl of Caithness moved Amendment No. 38:

Page 13, line 18, at end insert— ("(v) any air weapon; or").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 39: Page 13, line 20, leave out ("mammal") and insert ("animal").

The noble Earl said: My Lords, this is consequential on Amendment No. 18. I beg to move.

On Question, amendment agreed to.

[Amendment No. 40 not moved.]

Earl Ferrers moved Amendment No. 41: Page 13, line 22, leave out ("mammal") and insert ("animal").

The noble Earl said: My Lords, this is consequential. I beg to move.

On Question, amendment agreed to.

[Amendment No. 42 not moved.]

4.20 p.m.

Earl Ferrers moved Amendments Nos. 43 to 48:

Page 13, line 23, leave out ("mammal") and insert ("animal")

Page 13, line 27, leave out ("mammal") and insert ("animal")

Page 13, line 29, leave out ("mammals") and insert ("animals")

Page 13, line 35, after ("wild") insert ("birds or wild")

Page 13, line 37, leave out ("mammals") and insert ("animals").

Page 14, line 17, leave out ("things falling within paragraph (a)") and insert ("any of those things").

The noble Earl said: My Lords, Amendments Nos. 43 to 48 are all consequential. I beg to move these amendments en bloc.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 49: Page 14, leave out lines 20 to 24.

The noble Earl said: My Lords, in moving this amendment I should like, with permission, to speak also to Amendment No. 50. At Report stage your Lordships' House accepted an amendment by the noble Baroness, Lady David, to require a person charged with selling a protected plant on Schedule 8 to show that it was not taken from the wild. The amendment as drafted was defective; I hope the noble Baroness will find the redraft acceptable. I beg to move.

Baroness David

My Lords, may I ask this question? Does the new amendment really put the onus on the vendor of the plant to show that the plant was not taken from the wild?

The Earl of Avon

That is certainly our intention, yes.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 50:

Page 14, line 29, at end insert— ("(5) In any proceedings for an offence under subsection (2)(a), the plant in question shall be presumed to have been a wild plant unless the contrary is shown.").

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

On Question, amendment agreed to.

Clause 15 [Endangered species (import and export)]:

The Earl of Avon moved Amendment No. 51:

Page 15, line 25, at end insert— ("(2) The functions of the Nature Conservancy Council shall include the provision of advice and assistance to persons enforcing or seeking to enforce the provisions of the said Act of 1976 or any order made under it.").

The noble Earl said: My Lords, I shall, with your permission, also speak to Amendment No. 67. I said on Report that the Government accepted the principle of an amendment moved by my noble friend Lord Craigton which provided that the Nature Conservancy Council could appoint persons to advise and assist those engaged in enforcement of the Endangered Species Act 1976 and Part I of this Bill, and undertook to table suitable amendments. Your Lordships will remember that there was a general reference to the police who in fact act as individuals. This amendment is framed to cover both police and H.M. Customs and Excise. I beg to move.

Lord Craigton

My Lords, I am very grateful.

Lord Renton

My Lords, Amendment No. 51 is very properly saying that the Nature Conservancy Council shall give advice and assistance to people seeking to enforce the provisions of the Act of 1976. Under Amendment No. 67 it is said that it shall be their function to give advice and assistance to people enforcing or seeking to enforce the provisions of Part I. But the advice of the council will undoubtedly be required—perhaps in a big way—under Part II as well. I wonder why it is that Amendement No. 67 is confined to advice and assistance under Part I only.

The Earl of Avon

My Lords, without getting technical advice I shall endeavour to answer my noble friend in this way. I imagine it refers to Part I because that is where the birds and mammals are considered. It really only refers to Part I.

Baroness David

My Lords, I moved an amendment at an earlier stage of the Bill trying to strengthen the enforcement clauses because we did not think they went far enough. This amendment has gone some way. It shows that the Government have ack-knowledged the need for enforcement and this is to be given by the advice and assistance of the Nature Conservancy Council. We wanted them to have officers who could enforce it because they are the people who have the actual knowledge. We have gone some way but I do not think that this amendment gives them the means to enforce the Act. I hope that in the other place there will be further amendments which will definitely strengthen this clause. We still think that it does not go far enough as it is.

The Earl of Avon

My Lords, I have a suspicion that the Nature Conservancy Council itself is somewhat worried about going much further on the enforcement levels.

On Question, amendment agreed to.

Clause 16 [Power to grant licences]:

The Earl of Avon moved Amendments Nos. 52 and 53:

Page 15, line 27, leave out ("3")

Page 15, line 27, after ("8") insert ("and orders under section 3").

The noble Earl said: My Lords, with permission, I shall move Amendments Nos. 52 and 53. These are simple drafting amendments. I beg to move the amendments.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 54: Page 15, leave lines 35 and 36.

The noble Earl said: My Lords, with your permission, I shall also speak to Amendments Nos. 56, 58 and 63, which are consequential. The noble Lords, Lord Melchett and Lord Donaldson, suggested on Report that Clause 16(1)(f)—for the purpose of human consumption—might be misinterpreted in Europe and that it would be better to state in the Bill exactly what we are prepared to allow to be taken for human consumption. The amendments are designed to achieve that end. The practices listed are traditional and harmless to conservation. The noble Lord, Lord Melchett, also suggested on Report that taking for human consumption was not allowed by the directive. Provision is in fact made in Article 9(1)(c).

We have had a lot of goes at this particular clause. I hope that this will satisfy the noble Lord, Lord Donaldson, on his higher perch. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, I am most grateful.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 55: Page 16, line 3, after ("livestock") insert ("foodstuffs for livestock").

The noble Earl said: My Lords, I have already spoken to this amendment with Amendment No. 9. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 56:

Page 16, line 6, at end insert— ("(1A) Sections 1 and 3 do not apply to anything done for the purpose of providing food for human consumption in relation to—

1. (a) a gannet on the island of Sula Sgeir; or
2. (b) a gull's egg or, at any time before 15th April in any year, a lapwing's egg,

if it is done under and in accordance with the terms of a licence granted by the appropriate authority.").

The noble Earl said: My Lords, I have already spoken to this amendment with Amendment No. 54. I beg to move.

On Question, amendment agreed to.

[Amendment No. 57 not moved.]

The Earl of Avon moved Amendment No. 58: Page 17, line 5, after ("(1)") insert ("(1A)").

The noble Earl said: My Lords, I have already spoken to this amendment with Amendment No. 54. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 59: Page 17, line 6, leave out ("other").

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 60: Page 17, line 8, leave out ("other").

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 61: Page 17, leave out lines 12 to 20.

The noble Earl said: My Lords, Clause 16(6) was originally included to allow for the sale where appropriate of birds and other animals taken under licence. It has been made superfluous by the amendments making wider provision for sale which were accepted by your Lordship's House on Report. This amendment removes subsection (6). I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 62: Page 17, leave out lines 37 and 38.

The noble Earl said: My Lords, with permission, I shall speak to this amendment and Amendment No. 70 together. These are drafting amendments to include the definition of "Agriculture Minister" in the interpretation clause. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 63: Page 18, line 2, after ("(1)") insert ("subsection (1A)").

The noble Earl said: My Lords, I also spoke to this amendment, which is consequential, when moving Amendment No. 54.

On Question, amendment agreed to.

Clause 22 [Power to vary Schedule 5]:

The Earl of Avon moved Amendment No. 64: Page 21, line 10, leave out ("wild").

The noble Earl said: My Lords, this is a drafting amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 65: Page 21, leave out lines 33 and 34 and insert ("or Schedule 6; and").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 18. I beg to move.

On Question, amendment agreed to.

Clause 23 [Advisory bodies and their functions]:

The Earl of Avon moved Amendment No. 66: Page 22, line 31, after first ("may") insert ("out of moneys provided by Parliament and").

The noble Earl said: My Lords, this is another drafting amendment, and I beg to move.

On Question, amendment agreed to.

Clause 24 [Functions of Nature Conservancy Council]:

The Earl of Avon moved Amendment No. 67:

Page 23, line 9, at end insert— ("(4) The functions of the Council shall include the provision of advice and assistance to persons enforcing or seeking to enforce the provisions of this Part or any order or regulations made under it.").

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 51. I beg to move.

On Question, amendment agreed to.

Clause 26 [Regulations, orders, notices etc.]:

The Earl of Avon moved Amendments Nos. 68 and 69:

Page 23, line 34, at beginning insert ("except in the case of an order under section 2(6)").

Page 23, line 36, leave out ("2(6) or").

The noble Earl said: My Lords, I should like, if I may, to move Amendments Nos. 68 and 69 together. Clause 26(4)(b) as presently drafted requires in the case of orders made under Clause 2(6), the protection of Schedule 2, Part I birds in the open season, that local authorities shall be given an opportunity to make representations. This is clearly inappropriate and any order has to be made very quickly in order to give protection when it is needed and will usually be for the whole country. The amendments remove that requirement. I beg to move.

On Question, amendments agreed to.

Clause 27 [Interpretation of Part I]:

The Earl of Avon moved Amendment No. 70:

Page 24, line 12, at end insert— (""agriculture Minister" means the Minister of Agriculture, Fisheries and Food or the Secretary of State;").

The noble Earl said: My Lords, I beg to move Amendment No. 70. I spoke to this with Amendment No. 62.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 71:

Page 24, line 29, at end insert— (""air weapon" means any air rifle, air gun or air pistol not of a type declared by rules made by the Secretary of State under section 53 of the Firearms Act 1968 to be specially dangerous;").

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 72:

Page 24, line 41, at end insert— (""firearm" has the same meaning as in the Firearms Act 1968;").

On Question, amendment agreed to.

[Amendment No. 73 not moved.]

The Earl of Avon moved Amendments Nos. 74 and 75:

Page 25, line 22, after second ("animal") insert ("(other than a bird)").

Page 25, line 22, leave out lines 30 to 32.

The noble Earl said: My Lords, I should like, if I may, to move Amendments Nos. 74 and 75 together. I have spoken to them before and I beg to move.

On Question, amendments agreed to.

Clause 30 [Maritime nature conservation]:

The Earl of Avon moved Amendment No. 76: Transpose Clause 30 to after Clause 33.

The noble Earl said: My Lords, this is a technical amendment to re-order the clauses. I beg to move.

On Question, amendment agreed to.

4.35 p.m.

Earl Ferrers moved Amendment No. 77:

After Clause 31, insert the following new clause:

("Restoration where order under s. 29 is contravened

.—(1) Where the operation in respect of which a person is convicted of an offence under section 29 has destroyed or damaged any of the flora, fauna, or geological or physiographical features by reason of which the land on which it was carried out is of special interest, the court by which he is convicted, in addition to dealing with him in any other way, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the land to its former condition as may be so specified.

(2) In determining whether to make an order under this section against any person, the court shall have regard to his means so far as they appear or are known to the court.

(3) An order under this section made on conviction on indictment shall be treated for the purposes of section 30 and 42(1) and (2) of the Criminal Appeal Act 1968 (effect of appeals on orders for the restitution of property) as an order for the restitution of property; and where by reason of the quashing by the Court of Appeal of a person's conviction any such order does not take effect, and appeal to the House of Lords the conviction is restored by that House, the House may make any order under this section which could be made on his conviction by the Court which convicted him.

(4) In the case of an order under this section made by a magistrates' court the period specified in the order shall not begin to run—

1. (a) in any case until the expiration of the period for the time being prescribed by law for the giving of notice of appeal against a decision of a magistrates' court;
2. (b) where notice of appeal is given within the period so prescribed, until determination of the appeal.

(5) At any time before an order under this section has been complied with or fully complied with, the court by which it was made may, on the application of the person against whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.

(6) Any person who, without reasonable excuse, fails to comply with an order under this section within the period specified in the order shall be liable on summary conviction—

1. (a) to a fine not exceeding £500; and
2. (b) in the case of a continuing offence, to a further fine not exceeding £50 for each day during which the offence continues after conviction.

(7) In the application of this section to Scotland—

1. (a) subsections (3) and (4) shall not apply; and
2. (b) for the purposes of any appeal or review, an order under this section is a sentence.").

The noble Earl said: My Lords, I beg to move Amendment No. 77, but I feel I should point out to your Lordships that there is in fact an omission on the Marshalled List. The fourth line from the end of subsection (3) should have the word "on" appearing before the words "appeal to the House of Lords". It should read as follows: the quashing by the Court of Appeal of a person's conviction any such order does not take effect, and on appeal to the House of Lords the conviction". I should like also to speak to Amendment No. 108, if I may.

When your Lordships discussed at an earlier stage Amendment No. 167C, which was moved by the noble Lord, Lord Melchett, and which referred to the restoring of certain Clause 29 sites which might have been destroyed, I was somewhat pessimistic about the time which might be taken to resolve some of the problems that seemed to be posed by the amendment. Your Lordships will recall that the amendment sought to give the courts a power to require a person to restore so far as was practicable the special interest of land which had been made subject to an order made by the Secretary of State and which had been destroyed. It appeared to be the wish of your Lordships that something on the lines of this amendment, which could be seen as making the penalty fit the crime, should appear in the Bill before it left here for another place.

I feel I should make a special mention of Parliamentary Counsel's efforts, because I believe that we have here an amendment which meets your Lordships' wishes. It will empower the court, in addition to any other way in which it decides to deal with an offender, to make an order requiring him to make good, in whole or in part, so far as practicable and reasonable, the damage which has been done to the scientific interests of the land covered by a Section 29 order. I must point out, though, that the clause is not loaded against the owner or the occupier but is against the potential offender. It provides that the court shall have regard to his means, for it would do no good if a restoration order were made and the result were ruinous to the offender. Provision is also made for an appeal against the order and for the order to be rescinded or varied by the court as the circumstances change. But the court would have a power to impose a penalty for non-compliance with its order. We think this penalty should be a fine of up to £500 and we have provided, where the offender continues to be in breach of the order, for a further fine not exceeding £50 a day while the offence continues.

I should perhaps refer to subsection (7). This is merely a technical provision to ensure that a restoration order made in Scotland is subject to appeal under Scottish jurisdiction and Scottish procedures. Therefore it expressly disapplies subsections (3) and (4), which are relevant only to England and Wales, and then provides that as regards Scotland a restoration order is a sentence to which the normal Scottish appeal procedures automatically apply.

I am glad that we have been able to respond to your Lordships' wishes in a way which caters for both the principles and the technicalities involved in such a measure, and I hope it will meet with the approval of your Lordships. I beg to move.

Lord Renton

My Lords, I should like to join with my noble friend in saying that the draftsman has done a good job on a rather difficult matter. However, I should like to ask my noble friend just one question which could well arise in the courts and I think we ought to be clear about it. It may call for a further amendment in another place. At the end of subsection (1), we find: the court … may make an Order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the land to its former condition as may be so specified. I wonder whether I may ask my noble friend: is that intended to refer only to geographical condition of the land or would it be held that he should so far as possible restore it to its biological condition as well?

That would very often be impossible, because if a very rare plant, for example, has been uprooted—it may have been the last known specimen of it—nothing can be done. If, on the other hand, rare plants have been taken up or, for example, fauna which previously inhabited the land have been excluded from it but could, by finding them elsewhere, be reintroduced, that would be as far as possible restoring the land to its biological condition. Therefore, the word "condition" may very well need further explanation.

Lord Melchett

My Lords, may I very briefly thank the noble Earl very much indeed for this amendment, and echo what he said about the work of the parliamentary draftsmen in dealing with a very difficult point, which I apologise for originally introducing. But I am sure that the provision that will now be in the Bill will be very much welcomed by a number of noble Lords. I know that the noble Lord, Lord Hunt, and others spoke strongly in favour of this at previous stages of this Bill.

Maybe I could take this opportunity of praising not only parliamentary counsel, but all those officials who are working for noble Lords opposite and who have done so much work between the Report stage and this stage of the Bill, not only for producing all these amendments but also for writing a number of very helpful letters. I hope they will feel that their hard work has been rewarded by the fact that there are no amendments down in my name, or in that of my noble friend Lady David, except for one occasion when I joined my name to an amendment of the noble Earl, Lord Caithness.

I should have thought that the answer to the problem of the noble Lord, Lord Renton, was that the operations have to be specified by the court and the court will take into account, I imagine—and I hope that the noble Lord, Lord Renton, will agree with me—what it would be reasonable and practicable to ask an offender to do. It would not be reasonable or practicable to ask an offender to restore the land to the state it was in if it is an impossibility to reproduce wild flowers or to reintroduce fauna which have since left. Our previous discussions have made quite clear what was the intention behind this. I should have thought that the courts would be able to deal with it in a reasonable way, and there is plenty of provision for appeal if the offender in a particular case does not feel that that has been done. I myself very much welcome the amendment and I am grateful to the Government for it.

Earl Ferrers

My Lords, I am very grateful to the noble Lord, Lord Melchett, for those kind words which I totally endorse. The work that has been done by officials of the department concerned and by parliamentary counsel has been quite extraordinary; in particular, in trying to meet many of the real and difficult points which have been raised. I thought—and it is a happy thought—that the reason why there were no amendments in the name of the noble Lord, Lord Melchett, was that the department had considered all of the points that he made and met them, as well as the noble Lord's total mental exhaustion over the Bill, with which I have some mild sympathy.

In fact, I think that he answered my noble friend Lord Renton, but I will see that his point is taken into account. Clearly, if a farmer has ploughed up the one and only unique pink flower that exists in the country, it is impossible for that to be restored. On the other hand, the amendment as drafted permits the court to give an instruction for such operations, for the purpose of restoring the land to the former conditions "as may be specified". It may well be that the court would specify that in certain circumstances the offending work could possibly be restored, but, obviously, where it could not be restored that would be an impossibility. But I will certainly make sure that it covers the biological point which my noble friend made, as well as the normal one relating to land.

On Question, amendment agreed to.

Clause 32 [Limestone pavement orders.]:

4.44 p.m.

The Earl of Avon moved Amendments Nos. 78 to 80:

Page 31, line 19, leave out from beginning to ("would") in line 28 and insert— ("(1) Where the Nature Conservancy Council or the Countryside Commission are of the opinion that any land in the countryside which consists substantially of limestone exposed on or lying near the surface of the ground is of special interest by reason of its flora, fauna or geological or physiographical features, it shall be the duty of that Council or that Commission to notify that fact to the county and district planning authorities in whose areas the land is situated. (1A) Where it appears to the Secretary of State or the county planning authority that the character or appearance of any land notified under subsection (1).").

Page 31, line 36, after ("may") insert ("after consultation with the Council and the Commission").

Page 31, line 38, after ("may") insert ("after such consultation as aforesaid").

The noble Earl said: My Lords, if I may, I should like to speak to Amendments Nos. 78, 79 and 80, as these stem from Amendments Nos. 170 and 170ZA, the principles of which the Government were pleased to accept at Report stage. The effect of Amendment No. 78 is to meet the general wish of your Lordships' House that the county planning authorities or the Secretary of State should be able to make orders protecting the limestone pavements, where either the Nature Conservancy Council or the Countryside Commission had notified both the county planning authorities and the district planning authorities that the land was of special interest. Amendments Nos. 79 and 80 meet the wish that orders made by the county planning authorities or the Secretary of State should not be amended or revoked by them, until both the Nature Conservancy Council and the Countryside Commission have been consulted. I beg to move.

Baroness David

My Lords, I do not consider that the Government have carried out their obligations and the assurances which they gave at the Report stage. When the clause dealing with limestone pavements was dealt with in Committee, one point which was made was that the Countryside Commission should have a say. But the second, and most important, point was that the landscape value of the pavements should be recognised in the clause. This was stressed over and over again.

It was recognised by the noble Lord, Lord Sandys, who said at the Committee stage—if I may quote from column 379 of Hansard of 12th February— … they are also areas of great beauty which are a delight to many. It might seem reasonable that the Countryside Commission should be able to act positively to ensure that the contribution which the limestone pavements make in the landscape is not in any way debased". This was stressed by, I think, everybody who spoke, and at the end of his speech the noble Lord, Lord Sandys, said at column 380: We are sure the Countryside Commission and the local planning authorities will want to work closely together to preserve these areas of limestone where there is risk of exploitation that would cause irreparable damage to the landscape.". That was followed up at Report stage, when we had hoped that the Government would put down an amendment. They did not do so, and an all-party amendment was moved by the noble Lord, Lord Inglewood. Unfortunately, he is unable to be here today. I am sure that if he were here he would be backing this amendment or speaking himself. At Report stage, the noble Lord said: They aimed to achieve that the landscape value of these limestone pavements should be one of the reasons which should weigh with the Minister when it came to making an order." [Official Report, 12/3/81; col. 549.] That was repeated by the noble Lord, Lord Winstanley, and the noble Lord, Lord Hunt.

Incidentally, the noble Lord, Lord Hunt, asked me to say, if he was not back by the time this amendment was called, that he, too, is dissatisfied with it. The noble Lord, Lord James, also spoke of the landscape value and hoped that something would be put in the amendment. The noble Lord, Lord Inglewood, and I withdrew the amendment because we had those assurances. Owing to the lateness of the time when the amendment was put down by the Government—and, of course, we cannot put down amendments on the day of Third Reading—we have been unable to do anything about it. But I feel that we have been let down by the Government, and I should like to ask that they now commit themselves to putting down a further amendment in another place to meet the assurances which we had earlier.

The Earl of Onslow

My Lords, I should have thought that the word "physiographical" was a long and rather pompous lawyer's word for "landscape". It seems to me that my noble friend on the Front Bench has done what he said he would do.

Baroness David

My Lords, with the leave of the House, may I just answer that? The word "physiographical" has been in the clause right from the beginning, and I understand that it means the scientific study of land form and does not actually refer to the landscape. The NCC were there to consider the scientific features of the pavements and we hoped that the Countryside Commission would be there to look after the landscape side. The Countryside Commission is in, but the landscape is not particularly mentioned.

The Earl of Caithness

My Lords, may I raise one point on limestone pavements? I tried to put down a manuscript amendment, but under Standing Orders was not allowed to do so. At the Report stage the Government promised to include the words "a limestone pavement order". They have not put down such an amendment. Perhaps they could just confirm that it is their intention to do so.

The Earl of Avon

My Lords, if I may first answer the noble Baroness, Lady David, we do, indeed, recognise that the word "physiographical" includes landscape value. I will, of course, look through all that the noble Baroness has said and, if I find that we are in default, we will take appropriate action to meet her point. On my noble friend's point about limestone pavements and the problems of definition, we have tried to do what my noble friend suggested but, as has been said already, we have been under considerable pressure. At the moment we have not found a satisfactory solution to meet his point. However, we are still considering it. If we can come up with something, of course we shall certainly ensure that the Bill is so amended.

Lord Beaumont of Whitley

Suitable assurances, my Lords, have been given about the landscape value. I think, however, that without the words of the noble Earl, people would not necessarily take the word "physiographical" as meaning anything to do with beauty as such. We welcome his assurance that it does include it and that, if he receives advice that there is any doubt about it, the Government will do something about it in another place. Having said that, I am under instructions from my noble friend Lord Winstanley also to thank the Government for having put down this amendment. Unfortunately, my noble friend has a major engagement in the North of England. He will be here as soon as possible He had hoped to be here in order to give thanks himself but, as I say, he is not able to be here yet.

On Question, amendments agreed to.

Clause 34 [Grants and loans by Nature Conservancy Council]:

The Earl of Avon moved Amendment No. 81: Page 33, line 8, leave out from beginning to ("ensure") in line 9 and insert ("The Council shall so exercise their powers under subsection (3) as to").

The noble Earl said: My Lords, I will, with permission, speak also to Amendment No. 87. The House accepted on Report amendments by the noble Baroness, Lady David, to make sure that when grants are given in national parks and other areas proper provision should be made for disabled people who might go there for recreation. Parliamentary counsel have done some tidying up of the drafting and I hope the noble Baroness will find this acceptable. I beg to move.

Baroness David

Yes, my Lords, this is quite acceptable. I thank the Government.

On Question, amendment agreed to.

4.51 p.m.

The Earl of Avon moved Amendment No. 82: After Clause 34, insert the following new clause:

(" Duties of water authorities etc

.—(1) In subsection (3) of section 22 of the Water Act 1973 (areas of special scientific interest) the words "not being land managed as a nature reserve" shall be omitted.

(2) After that subsection there shall be inserted the following subsections—

" (4) Where any land has been notified to a water authority under subsection (3) above, the authority shall consult with the Council before executing or carrying out any works or operations appearing to them to be likely to destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which the land is of special interest.

(5) Subsection (4) above shall not apply in relation to any emergency operation particulars of which (including details of the emergency) are notified to the Council as soon as practicable after the commencement of the operation.

(6) References in this section to water authorities shall include references to internal drainage boards and the reference in subsection (3) above to the water authority in whose area the land is situated shall include a reference to the internal drainage board in whose district the land is situated.".").

The noble Earl said: My Lords, I will be brief. I should also like to speak to Amendment No. 105 which is consequential.

This amendment meets the undertaking given to the House during the Report stage that consideration would be given to the Amendment numbered there 177A. That amendment, it will be recalled, sought to place upon water authorities and internal drainage boards the obligation to consult the Nature Conservancy Council before undertaking or giving permission to others to undertake any schemes, operations or activities which might affect the special interest of any land which had been notified to the water authorities or the internal drainage boards as being of special scientific interest.

The effect of this amendment will be to require water authorities and internal drainage boards to consult the Nature Conservancy Council before carrying out any work or operations when it appears to them that those works or operations might be likely to destroy or damage any of the flora, fauna, geological or physiographical features which were of special interest and which led to the notification of an area by the Nature Conservancy Council as being of special scientific interest. May I digress slightly to tell the noble Baroness that I had a nice physiographical feature up my sleeve to illustrate this point. It was of course the Avon Gorge.

The amendment also recognises, as did the amendment moved by the noble Lord, Lord Melchett, that such consultations may not be possible where emergency operations are involved. It relieves the water authorities and internal drainage boards from the prior consultation requirement but does place upon them the obligation to notify the Nature Conservancy Council as soon as is practicable after the work has started.

Thus I think it will be seen that we are not placing any unreasonable barriers in the way of the water authorities or the internal drainage boards in the discharge of their functions. We are ensuring however that where there is a need for consultation it shall take place and the Nature Conservancy Council will be fully aware of the operations which could affect areas of scientific interest.

In moving this amendment I must make clear to your Lordships that unlike water authorities, internal drainage boards are relatively small organisations lacking the administrative facilities of the former. Fears have been expressed that subsection (6) may impose quite considerable problems on internal drainage boards and I wish to make it clear to your Lordships that the intention is that the boards will do their best to discharge this new responsibility. My Lords, I beg to move.

Lord Renton

My Lords, I should like to welcome this amendment which has been moved by my noble friend. I am familiar with this part of the world; namely, Huntingdonshire, both the Fens and the clay-land there. We have a great mixture of water authorities: internal drainage boards, the Middle Level, the Great Ouse Water Authority and so on—which are now to be superseded by the Anglian Water Authority.

There have been some most unfortunate cases of the water table being lowered, sometimes for good agricultural reasons and sometimes merely to stop flooding, which have had very bad effects on the flora and fauna. Indeed, the swallowtail butterfly was completely excluded from one of its favourite reserves in the Fens simply because the water table was lowered rather carelessly and has never been restored. The vegetation upon which the swallowtail butterfly there depended was destroyed. It has never returned. So these things can matter very much. I am sure that what my noble friend has said will be borne in mind. Let us hope that this new clause will produce the results which he hopes.

Baroness White

My Lords, I apologise to the House for not having had time to consult about this proposed new clause. In general one welcomes it but, with the noble Lord, Lord Renton, one cannot help having some apprehensions about the internal drainage boards in particular. As the noble Earl, Lord Avon, rightly said, sometimes they are not particularly strongly staffed. I am concerned about some of the things which happen at the instance of internal drainage boards who, for reasons which seem to them to be right and proper, straighten out, canalise banks, cut down trees and shrubs, and so on.

I am assuming that in line 2 on page 10 of the Marshalled List the word "them" is the water authority or the drainage board. If one has to rely upon the drainage board to know what damage they might be doing, it seems to me to be a rather shaky safeguard. I may be wrong about this, and I see that my noble friend Lord Melchett is getting impatient. It is just that I have had brought to my notice in the last few days some quite appallingly damaging things which have been done by certain internal drainage boards. I should like to be reassured that this new clause will do all that is required of it.

Lord Melchett

My Lords, I am sure that my noble friend is right: that it will not do all that is required. Despite the new clause, we shall still see sites of special scientific interest being destroyed by water authorities and internal drainage boards. What we need is better protection for those sites in Part II of the Bill. Having said that, I think that the Government's new clause goes as far as it can in laying duties on water authorities and internal drainage boards to take account of the sites. As I was the one who introduced the amendment, I think first at Committee stage, I am very grateful to the Government for what they have done.

The answer to the worry expressed both by the noble Earl, Lord Avon, and by my noble friend and others about the capacity of internal drainage boards is that this provision in legislation will give an opportunity to local interests to make representations to internal drainage boards about their activities and sites which they should be careful of. The cases which were brought to my attention and why I first put down the amendment were in the Broads and in the Broads area. The Norfolk Naturalist Trust and the regional office of the Nature Conservancy Council have been very closely involved in a number of cases where internal drainage boards have done things to the detriment of farmers and tenant farmers—on the Norfolk Naturalist Trust's own reserves in one instance.

The problem at the moment is that there is nothing in legislation which says that an internal drainage board needs to take any notice of or even listen to the representations which those sorts of other local interests will make to them. This new clause certainly puts that right.

It will be very warmly welcomed by people working on the ground locally, whether they are staff of the Nature Conservancy Council or of voluntary organisations. It will not protect all sites of special scientific interest but it does go a long way towards meeting a particularly acute problem, which had led to some very serious cases of destruction, really, as the noble Lord, Lord Renton said, through ignorance, or because people were not thinking about it, which is all the more upsetting, I suppose. I hope that this will at least make sure that such cases will not occur in the future. I should like to thank the noble Earl and the Government for tabling this amendment.

The Earl of Avon

My Lords, I made very long opening remarks and I do not intend to take it any further. I think the noble Baroness will have been satisfied with what the noble Lord, Lord Melchett, has said. We had a delicate balance to strike here, and we hope that we have done so.

On Question, amendment agreed to.

Clause 35 [Schemes under Agriculture Act 1970]:

5.1 p.m.

The Earl of Avon moved Amendment No. 83: Transpose Clause 35 to after Clause 37.

The noble Earl said: My Lords, this is another technical amendment to re-order the clauses. I beg to move.

On Question, amendment agreed to.

Clause 38 [Notification of agricultural operations on moor and heath in National Parks]:

The Earl of Avon moved Amendments Nos. 84 and 85:

Page 35, line 32, leave out ("or forestry operation appearing") and insert ("operation or any forestry operation which (in either case) appears").

Page 35, line 34, after ("and") insert ("is").

The noble Earl said: My Lords, with the permission of the House, I will speak to Amendments Nos. 84 and 85 together. These are drafting amendments and I beg to move them en bloc.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 86: Page 36, line 30, leave out ("Part") and insert ("section").

The noble Earl said: My Lords, this is another drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 39 [Grants and loans for purposes of National Parks]:

The Earl of Avon moved Amendment No. 87: Page 37, line 5, leave out from beginning to ("shall") in line 6 and insert ("A county planning authority shall so exercise their powers under subsection (2) as to").

The noble Earl said: My Lords, I have already spoken to this with Amendment No. 81. I beg to move.

On Question, amendment agreed to.

Clause 41 [Extension of power to appoint wardens]:

The Earl of Avon moved Amendments Nos. 88 and 89: Transpose Clause 41 to after Clause 43.

Clause 42 [Amendment of Agriculture (Miscellaneous Provisions) Act 1944]: Transpose Clause 42 to after Clause 43.

The noble Earl said: My Lords, these again are technical amendments to re-order the clauses. I beg to move Amendments Nos. 88 and 89 en bloc.

On Question, amendments agreed to.

Clause 46 [Duty to keep definitive map and statement under continuous review]:

The Earl of Caithness moved Amendment No. 90: Page 40, line 38, at end insert ("except that during a period of seven years beginning with the commencement date nothing shall require a surveying authority to show as a right of way, or a highway of particular description, any right of way in regard to which evidence has been discovered under sub-paragraphs (c)(ii) and (iii) of this subsection such that an alteration has been made to the definitive map, and the authority are convinced that such enjoyment by the public of the right of way was in consequence of the inclusion of the right of way in the definitive map").

The noble Earl said: My Lords, we return here to the complex question of footpaths. The simple aim of this amendment is to give an owner a period of seven years' grace to appeal to the appropriate authority where a right of way is wrongly mapped and has been so used for a period of more than 20 years.

To summarise, as I understand it, the view of the Government is that where there is good evidence that an error was made either by wrongly mapping a path or by giving it too high a status, then, first, the individual prejudiced in title can protect himself from use giving rise to a presumption of dedication by undertaking two actions. He should erect a sign inconsistent with dedication and submit his evidence to the surveying authority. At this point, the existence of the public right is "called into question" and future use does not prejudice the position.

Secondly, no statement has been made on whether an authority may open up or demand to be opened up a path or way for use—breaches of walls, replacing of stiles with gates, et cetera. It is the Government's view that if good evidence is available then authorities will stay their hand and make a new style Definitive Map (Amendment) Order instead.

Thirdly, there is a clear distinction between the evidential provisions of the map and the common law position. The mapping of a path is conclusive only that there was a public right of way at the "relevant date", that is when the map gained force. For that to be translated into a common law presumption of dedication, there must be use. Without use, the new good evidence of error will override the map. The Government have argued previously that it would be too difficult to determine whether such use began with the definitive map or not, or continued because of the map, or would have occurred in any case.

I am sorry to have gone back on the history, but I thought it was important to set our amendment in context. The amendment moved at this stage is directed to the last point that I mentioned. We have argued that inspectors could sort out such evidence, which would generally be fairly recent in date, with witnesses available. It is no more difficult, it seems, than decisions that they at present face on older paths. In any case, we have once again limited it to a seven-year period of grace.

The aim of the amendment at this stage is, first, to have the above summary of the Government's position read into the record and confirmed, so to speak. It is, secondly, to clarify beyond doubt the position in certain potential cases and to seek assurances that the Government will look at the position afresh (and act expeditiously) if the law turns out to be, or many cases come to light, of the expiration of 20-year periods causing prejudice.

The final questions I wish to ask are these: Where a county comes under the new proposals for individual map orders, it can readily respond to a conflict of, say, bridleway status, mapped with stiles. Does the same Government view that features should not be considered obstructions while status was under discussion hold where old-style reviews continue? Secondly, if the courts should hold, say, that the evidential provisions do prejudice against correction of errors in any way, will the Government reconsider their position, as this breaches their principle of evidence being decisive? Thirdly, will the Government issue circular advice, as many difficult conflicts are awaiting the outcome of this Bill? It would be very helpful to the countryside if farmers were not to be faced with "28 days to remove obstruction" letters from local authorities who, understandably, fail to grasp the rather complex situation.

I am sorry to have taken up so much time at this stage, but I should be grateful if the Government could answer the points I have made. I beg to move.

Lord Melchett

My Lords, I will not attempt to answer the noble Earl's questions on this amendment, but maybe I could say a word about the amendment itself. I was not able to go along with similar, or although I think rather wider, amendments which the noble Earl moved at, I believe, Committee stage, and certainly at Report stage, and I still have some major worries about this amendment. I certainly agree with him when he says, as I understood him to say, that the inclusion of a path on a definitive map by mistake should not, by itself, be a good reason for its remaining on definitive maps in the future. But I do think that 20 years of use of a path by the public should be something which can be taken into account and should not be automatically dismissed in the way that I think the noble Earl's amendment would do. That seems to me to be a rather different matter from having an automatic presumption that, just because something was on a definitive map in the past, it will continue to be so. For example, I would suggest that if a landowner or occupier has resisted the use of a path on a definitive map by complaining about it and objecting, then that resistance would be capable of being taken into account in evidence when the matter was being decided.

I think I am right in saving that the noble Earl and his noble friends objected when I attempted to move an amendment at a previous stage to put some restriction on the evidence which could be brought forward when something was going to be added to a map, as opposed to deletion. That did not find very much favour with noble Lords opposite, and indeed I have had a letter from the noble Lord, Lord Bellwin, reiterating the argument quite strongly, and I have not put down an amendment on that point. I think that at least as a quid pro quo the noble Earl should accept the fact that the 20 years' use must be able to be taken into account even though something has been entered into a map in error. The existing provisions of the Bill really are reasonably fair to all parties. I hope the noble Earl, if he gets satisfactory answers to his questions, or even if he does not, will withdraw this amendment.

Lord Bellwin

My Lords, I believe I dealt with the issues raised by this amendment in my response to the amendment moved in Committee. I said on that occasion that I did not want to appear unsympathetic to the problems of the farmers and landowners whose interests may have been prejudiced through the inclusion of a way on the definitive map in error. However, this amendment would curtail the application of the common and statute law regarding the implied or presumed dedication of public rights of passage overland following a long period of uninterrupted use.

I said then, and repeat now, that the curtailment of this long established principle that the public can acquire a right of way over land whatever the origins of the initial use is not a matter to be taken lightly. I therefore cannot support the amendment. Authorities would also be faced with the additional difficulty of ascertaining with any degree of certainty that the use of the way stemmed from its inclusion in the definitive map and statement.

However, perhaps I can help my noble friend if I try to answer specifically the points he made by saying this. He wanted some assurance that the Government will look at the position afresh in the event of many cases of prejudice coming to light, and I say to him gladly, yes, that will be so. Then he said that features should not be considered obstructions if there are status reviews. To that I would say that the existence of features as obstructions would be for the courts to decide, but I would hope that no action would be taken by highway authorities until the status of a path was decided.

Then my noble friend asked whether, if the courts decide that evidential provisions do prejudice correction of errors, the Government will reconsider the position, and to that I say, Yes. Finally he asked whether we would give circular advice, and to that also I say, Yes. I hope, therefore, that my noble friend will agree that at least we are trying to be helpful, and perhaps will withdraw the amendment.

The Earl of Caithness

My Lords, to that I say, yes; but before I do so may I mention a point raised by the noble Lord, Lord Melchett? A point I did not mention today but which I did mention at Report stage was that some farmers have waited for well over 20 years for a definitive map review without putting forward their case. Now I think you will find that they will put forward their case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.13 p.m.

Lord Bellwin moved Amendment No. 91:

Page 41, line 16, at end insert— ("(4A) Any person may apply to the authority for an order under subsection (2) which makes such modifications as appear to the authority to be requisite in consequence of the occurrence of one or more events falling within paragraph (b) or (c) of subsection (3); and the provisions of Schedule (Applications for certain orders under Part III) shall have effect as to the making and determination of applications under this subsection.").

The noble Lord said: My Lords, with this amendment I wish also to speak to Amendment No. 127. Your Lordships will recollect the undertaking that I gave on Report to reconsider, in the light of the decision on transfer of jurisdiction to local authorities, the whole question of a right of appeal to the Secretary of State on the refusal of an authority to entertain a claim for a definitive map order. We accept that the public should be enabled to apply for an order and enjoy a right of appeal to my right honourable friend the Secretary of State against the refusal to make an order. Our proposals are embodied in these two amendments. A few words of explanation on certain features of the proposals will, I am sure, be welcome.

An obvious problem with giving to the public a statutory right to apply for an order, without a formal procedure for doing so, is that it could lead to frivolous and unsubstantiated applications. We concluded therefore that to protect authorities from frivolous applications a formal procedure such as is provided for in the amendment was essential. That a person takes the time and trouble to produce the necessary evidence and plan is a clear indication that the claim is not frivolous, and that his application merits serious consideration. The requirement to inform the landowner has been included to enable the authority to be notified of any relevant information he has available that would assist them in coming to the right decision.

The arrangement does not apply to orders for the reclassification of roads used as public paths. These have been excluded for the simple reason that authorities have a duty under the provisions of Clause 47 to review their roads used as public paths and produce orders to reclassify them as either byways open to all traffic, bridleways or footpaths. This does not mean that persons will be prevented from bringing to the notice of the authority relevant evidence, merely that they will be unable to apply for an order. They will in any event be able to object to the order if dissatisfied with a particular proposal. Similarly there is no specific need for the arrangement to encompass the map and statement that authorities will be obliged to prepare under Clause 48(2) for former county borough areas, since the modification of that map and statement will take place under Clause 46(2).

The last point I should like to mention concerns the right of an applicant, if after 12 months the authority has failed to reach a decision on his application, to ask my right honourable friend the Secretary of State to intervene on his behalf by directing the authority to determine the application by a certain date. The provision has been included in the hope that it will assist the smooth transition from the present procedure. I think it is generally recognised that, in the early years of the new system at least, a backlog of applications could build up.

That the conclusive evidential effect of definitive maps and statements is without prejudice to the existence of higher rights will help to alleviate the situation, since there will no longer be the same pressure to submit applications. None the less, authorities could easily be inundated with applications to the extent that they will need extra time to enable them to cope. This provision would give them that time and thus prevent authorities, conscious of the pressures upon them, from giving insufficiently careful consideration to applications. Obviously we are hopeful that the vast majority of applications will be determined within the 12 months and that, where they are not, the applicant will only come to my right honourable friend the Secretary of State as a last resort after exhausting all other avenues with the authority. My Lords, I felt that it was proper that I should give some explanation in this way. I beg to move.

Lord Melchett

My Lords, I think that basically these are two amendments which we should want to welcome and thank the Government for, but there are two points of concern. The first one, which the noble Lord mentioned very briefly in describing some of the new things that would be introduced, is in Amendment No. 127, in paragraph 2, on page 16 of the Marshalled List. It is the requirement for members of the public to give notice of an application to all owners and occupiers of land affected. That does seem to me to be an impossible burden to place on members of the public. First of all, as I understand it, they have no way of finding out who all the owners and occupiers would be. It may be that in some cases it would be an extraordinarily onerous burden. It is not one which is placed on landowners who are wanting to delete a path on a map; there is no requirement for them to inform all members of the public who use the path, or even all representatives of the public or users' groups in the area. I should have thought that the interests of landowners or occupiers would be adequately served by the requirement to serve notice of an order on them; they will be given notice before an order is made, and I should have thought that also to require notice of an application would really be an impossible burden. It may be that this simply means that paragraph 2(2) will always operate, and that, after reasonable enquiry has been made, it will be found not to be practicable to ascertain the name and address of every owner and occupier and this requirement simply will not operate. In that case there does not seem to be much point in having it in. I would not necessarily expect the Government to give an answer now, but they may like to look at the point before the Bill goes to another place.

The other point of concern—and I simply mention it because again I think that it is something which another place will have to look at—is that the form of application, the scale of map, the notice to be given to the landowner and the certificate of this having been done will all be prescribed by regulations. But, if the authority concerned subsequently decides to make an order or is told to make an order by the Secretary of State, that order and the associated notices will not have to be in the prescribed form. It seems to me that, if the form of application and all the other things will have to be in a prescribed form, then the making of the order should really be in the same form. It would be simpler for everybody, including, presumably, the authority.

I simply raise those two points and leave them with the noble Lord. If he wants to write to me about them I would be interested, but I am sure that this is something which people in another place will want to continue to discuss. Having made those two points, I should like to say that I am very grateful to the noble Lord for producing this amendment.

Lord Beaumont of Whitley

My Lords, this is one of the most important matters in the Bill and it is indeed a matter of gratification that the Government have seen fit to meet the wishes of your Lordships' House on this matter. We are very grateful to them for the trouble that they have taken and for including this provision. I am sure that it is an enormous improvement and that if it had not been put in there would have been a very real sense of justified grievance on the part of a great many people in the countryside. This amendment has gone a long way to rectify that situation and we are very grateful indeed.

Lord Bellwin

My Lords, I would just like to say that we shall consider carefully what the noble Lord, Lord Melchett, has said. I shall write to the noble Lord. If anything is to be done, it will obviously have to be done in another place. However, I can tell him that the matter will be considered very carefully. I should like to thank him and the noble Lord, Lord Beaumont of Whitley, for welcoming the amendment.

On Question, amendment agreed to.

Clause 52 [Orders creating, extinguishing or diverting public rights of way]:

Lord Bellwin moved Amendment No. 92: Transpose Clause 52 to after Clause 55.

The noble Lord said: My Lords, I beg to move Amendment No. 92. This amendment and Amendment No. 98 are further technical amendments to re-order the clauses. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Jacques)

My Lords, Amendments Nos. 93 to 97 are printed in the wrong place on the Marshalled List and will be called later. Therefore, I call Amendment No. 98.

The Earl of Avon moved Amendment No. 98: Transpose Clause 53 to after Clause 56.

The noble Earl said: My Lords, I beg to move Amendment No. 98. We have just spoken to this amendment.

On Question, amendment agreed to.

5.25 p.m.

Lord Stanley of Alderley moved Amendment No. 99: After Clause 53, insert the following new clause:

("Prevention of Sheep Worrying

.—(1) If, in a case not falling within subsection (2), any person without lawful authority permits a dog to be present in a field or enclosure not exceeding 25 hectares containing sheep or lambs, he shall be liable on summary conviction to a fine not exceeding £200.

(2) Subsection (2) shall not apply to

1. (a) any person acting with the permission of the owner or occupier of the field or enclosure;
2. (b) any person acting in the belief that he would have the consent of the owner or occupier of the land if the owner or occupier knew of his doing it and the circumstances of it;
3. (c) any person on a right of way so long as the dog is—
1. (i) on a lead of reasonable length; or
2. (ii) under close control;
4. (d) any blind person; or
5. (e) any constable acting in the exercise of his duty.

(3) In any proceedings under subsection (1) it shall be a defence to show that the defendant had made every effort to follow the line of the right of way but had been unable to do so.").

The noble Lord said: My Lords, I beg to move Amendment No. 99. I apologise to your Lordships for putting this amendment down yet again when I had led the House to believe that I was going to press it on Report. I shall, therefore, not weary your Lordships by explaining the purpose of the amendment, but I hope your Lordships will agree that I have now got a tidier, and, I hope, better amendment by redrafting it. In particular, I have put a limit of 25 hectares on the enclosure and altered the word "allow" to "permit".

At Report I think that I found myself in a similar position to the noble Lord, Lord Northfield, who had to amend his Deer Bill because it would have had unforeseen repercussions on country sports. Like the noble Lord, Lord Northfield, it was not and, indeed, is not my intention for this amendment to have such an effect. I have, therefore, used the same words as your Lordships' and parliamentary draftsmen approved in the Deer Bill to solve this problem. I hope that when the noble Lord, Lord Northfield, reads this he will have some quiet amusement at my discomfiture.

My last point is to reply to the criticism of my noble friend Lord Renton and, I think, my noble friend Lord Waldegrave, who stated at Report that my amendment was unnecessary. As I said then and repeat now I would much prefer complete legislation on dogs as suggested in Dogs in Society. I cannot get such legislation and I do not think that your Lordships can either, so I must continue with this piecemeal approach which, despite what my noble friends say, will, and indeed has, drawn the public's attention and I hope the Government's attention to the terrible things that dogs do to sheep particularly when two months in lamb. If my amendment does only that, I shall be, for the moment, content. I beg to move.

Viscount Massereene and Ferrard

My Lords, I should like to support the amendment because I supported my noble friend's last amendment on this question at the Report stage. The only slight criticism that I have is that it might be hard for the dog owner to know whether he was in a field under or indeed over 25 hectares. He could hardly go round with a tape measure! However, I support the basis of the amendment and especially at this time of year when a great number of lambs are being aborted through the presence of dogs not necessarily chasing sheep but frightening them.

Lord Gibson-Watt

My Lords, before my noble friend replies to the amendment I should like to say that although I normally support the amendments which my noble friend Lord Stanley of Alderley proposes, on this occasion I am not entirely happy about the amendment. I say that to him as somebody who has had a long experience of living in a sheep breeding area and who breeds sheep himself.

I think that the situation is probably more difficult in areas where there are large numbers of footpaths and areas which are near big cities where there are more dogs. I fully accept that there is a problem there. However, in the type of outlying district where I live when we have damage to sheep the person who owns the dog is always found. We had a case last year. A lady had a dog which killed about six of our sheep. We found out whose dog it was, we went and saw the lady and said, "Would you be kind enough to remove this dog because if you do not we shall take you to court". The lady took the dog away to areas where there were no sheep and we have not had any trouble since that time.

There is no doubt about it, in some areas the problem is very much worse than in others. I do not know what the Government's answer will be to this question. I think that this Bill is a Bill of balances of interests and I think that throughout Government Ministers have acted in an admirable way in trying to balance the very many interests in the countryside and the interests of the many users of it. I am only saying to my noble friend that I think that on this occasion he is taking the weight rather too far on one side. I always speak for the farmers and I fully understand and sympathise with the intention behind the amendment, but I am not entirely happy with its scope.

Lord Renton

My Lords, I, too, am opposed to the amendment and in spite of what my noble friend Lord Stanley has said I still maintain that the present law provides adequate protection. It is very effective and heavy penalties can be imposed—indeed, dogs which have caused trouble can be destroyed if the court so orders. In any event let us suppose that my noble friend has a case for further legislation on this matter. I could not advise him—if it falls upon me to advise him—that this particular method of legislation would do. For example, if we look at subsection (2)(b) we find that it says: any person acting in the belief that he would have the consent of the owner or occupier of the land if the owner or occupier knew of his doing it and the circumstances of it". In those circumstances he would be all right. But this is a strange hypothetical question. One does not know whether the test which the court would have to apply is the subjective test, so far as it could be ascertained, as to what was in the person's mind, or the objective test of what a reasonable person might be thought to have had in his mind in those particular circumstances. I can imagine this kind of issue going right up to the House of Lords. It is a very difficult and a very unusual provision.

I join with my noble friend Lord Massereene when he drew attention to the possible difficulty over 25 hectares. I am afraid that in East Anglia we are still using the expression "acre" more frequently, and those of us who were not very recently at school might easily have quite a mental problem converting acres into hectares. However, that is something which in the course of time and which as generations come along may well be overcome, but I must confess that it would be a difficulty that faces me.

I do not know whether it has occurred to my noble friend Lord Stanley that there would, for example, be a problem as regards gun dogs, unless they were on a lead. Speaking for myself, I have never yet seen a gundog molest sheep or lambs. There may be rare cases of it, but from long experience I have never seen it happen. There is also the question of whether or not a dog is under close control. That may prove to be very difficult. Let us take, for example, the case of a farmer who is trying out a new sheepdog and that sheepdog strays on to a neighbour's land where there happen to be sheep; however experienced the shepherd or the farmer concerned may be, is he said to be not exercising close control if, when training his dog, he finds for a moment that the young sheepdog gets out of hand? All kinds of problems arise; one's experience and imagination would lead one to others. Therefore, with deep respect for my noble friend's motives, I do not think that this amendment will do.

Earl Peel

My Lords, in supporting the noble Lord, Lord Renton, as I do, I am curious to ask the noble Lord, Lord Stanley, why we have a restriction of 25 hectares in this amendment. Do sheep not go into fields of more than 25 hectares?

The Earl of Onslow

My Lords, I should like to raise one or two matters. I have seen sheep being worried on moorland areas. Why should this protection just extend to areas of under 25 hectares? The other point worth mentioning is the field sports' point of view. If hounds, which are normally extremely well-disciplined, go across the corner of a person's field, this amendment will allow people of evil intent to bring prosecutions which probably would not normally be brought by the owner. It seems to me to be too widespread.

A further point worth raising is that if you are out shooting and you shoot a bird into a neighbour's field, I believe that you are entitled to pick up that bird, provided that you leave your gun behind. If you send a runner into a field where there are sheep, you will be committing an offence. I do not think that that is a satisfactory state of affairs. I certainly agree with your Lordships that in certain areas there is a major problem of sheep-worrying. Only the other day I heard of a responsible person whose pet lurcher was caught worrying sheep and he was put down that very afternoon. The majority of responsible people have their dogs put down if they are caught worrying sheep. I do not have sheep, but if I had sheep and I saw a dog worrying sheep on my land, I would not hesitate to shoot the dog there and then if I could do so. As it stands, I think that the law is adequate and satisfactory.

Lord Burton

My Lords, perhaps I could reply to my noble friends Lord Renton and Lord Onslow. They both referred to the position of gundogs. I think that they both omitted to take into account subsection (2)(a) and (b), which both refer to the consent of the owner. If a gundog is there without the consent of the owner or the occupier, I would suggest that it is as bad a vandal as any other dog. This would also apply to the sheepdog situation.

Noble Lords have said that they think that the protection is adequate. I think I am right in saying that 6,000 sheep are killed by dogs every year. On that basis I do not think that the law is adequate. Even if this amendment is not adequate, I am sorry to see 25 hectares in the amendment; I would rather it had been more. In spite of that, the amendment is a step in the right direction and I hope that my noble friends on the Front Bench will at least support it.

Lord de Clifford

My Lords, I, too, should like to support the noble Lord who has moved this amendment. I think that it is eminently reasonable. When you live in the country, with rights of way crossing your land, it is very difficult to make quite sure that dogs do not worry sheep: they do. The noble Lord who said that he lives in the country and does not get dogs belonging to people from the towns worrying sheep amazes me, because in my area we do. I do not think that there is very much wrong with this amendment. Your Lordships wholeheartedly supported a similar amendment when it was last moved, and I think that my noble friend has done exactly what was wanted and has tried to meet the points raised on that occasion. I hope that your Lordships will support this amendment.

The Earl of Avon

My Lords, when we debated this subject previously I made it quite clear on behalf of the Government that we were entirely sympathetic to the intention of protecting sheep and lambs from dog-worrying. That remains the case, but I should like to reiterate it at the start of my remarks.

Briefly I should like to explain—as I have done in the past, although I do not think that noble Lords have taken the point—that we believe there is enough legislation to cover this measure. The Interdepartmental Working Party on Dogs, which looked into this matter between 1974 and 1976, considered whether the existing law should be altered so as to help the farmer faced with a problem of livestock-worrying. It considered the effects of various Acts, including the Dog (Protection of Livestock) Act 1953, which already makes it an offence for persons to allow dogs to worry livestock, and in particular Section 9 of the Animals Act 1971, which enables farmers to defend their livestock against dogs which worry or which are about to worry livestock. The working party concluded that that section gave farmers adequate powers to defend livestock against dog attacks. I have those two pieces of legislation before me, and I hope that noble Lords who are in doubt will study them.

Although the noble Lord's previous amendment on dogs attracted a fair amount of support in the debate during the Report stage, both my noble friends Lord Renton, who has already spoken this time, and Lord Waldegrave added that they had lately seen prosecutions against dogs under this legislation, and I think that my noble friend Lord Renton used the words, "it was pretty effective". That is the situation as it stands at the moment. Frankly, that is where the Government would prefer it to rest.

My noble friend Lord Stanley has worked very hard to get an amendment which is satisfactory to everyone, but from listening to the debate just now, it seems that it is an extremely difficult thing to do. I also had one or two points for clarification, but needless to say my noble friend Lord Renton pre-empted me. One was whether subsection (2)(b) is too subjective an interpretation; the other was whether in paragraph (c) the terms "of reasonable length" and "under close control" beg too many questions and have no precise meaning. I say to my noble friend Lord Stanley that obviously this piece of legislation will be subject to very close scrutiny in the other place should it be passed in this House tonight, and I am sure that it will not come back to us exactly as we send it to them. Therefore, I wonder whether he would wish to press it.

Lord Melchett

My Lords, that seems to me to be a strong argument in favour of the noble Lord, Lord Stanley, pressing his amendment. It obviously needs some further expert attention in drafting. I hope that the noble Lord, Lord Stanley, will not feel that that is rude of me, but I have accepted all my amendments that have needed redrafting by the Government when they have been put in the Bill. Obviously this amendment would need redrafting too, but I think that the noble Lord, Lord Stanley, and his advisers have done a good job of it.

I am astonished at the opposition to it. At Committee stage when this amendment was moved I was the only person in your Lordships' House who had any objection to it at all. No one else raised a single point against it at Committee stage. I apologise, except the Government. I was assuming that all of us would accept that the Government were opposed to sensible Back-Bench amendments whether from their own side or this one. The noble Baroness, Lady Elliot, made a passionate speech about the problems of dogs attacking and worrying sheep. I felt embarrassed in getting up and making one or two minor points against the amendment. There was absolute unanimity, apart from the Government Front Bench and myself, in favour of the amendment. Now it appears that people have got less enthusiastic.

The noble Lord, Lord Gibson-Watt, said that it was a question of striking a balance. Between what? He did not tell us. He simply said that he had had some worries about the amendment. It seems to me that the amendment strikes a perfectly reasonable balance between the rights of people walking in the countryside, with which much of Part III of the Bill is rightly concerned, the rights of people to maintain public rights of way and to have them signposted, and so on, which are all covered in the Bill, and here we talk about the rights of people who have sheep not to have them worried by dogs, and not to have the fear that those using public rights of way will not control their dogs and will have dogs in the countryside that will worry sheep. That seems to me to be striking a reasonable balance between the people using rights of way and their rights, and the rights of farmers.

My original worry was that the amendment placed unreasonable restrictions on people using public rights of way. The noble Lord has gone all the way he possibly could have done to meet my point. I am probably responsible, among others, for the 25 hectares creeping in. There needed to be some definition of field or enclosure. Twenty-five hectares may well not be the right thing, but at least we have the principle that there should be some definition there. I am quite happy with it.

Noble Lords have mentioned gundogs and hounds. First, gundogs should be under close control. A properly trained gundog, whether it is on somebody else's land retrieving a dead bird or the land where the person was shooting, should be under close control. If it is chasing sheep and lambs, then clearly the owner should be liable to prosecution. It would be monstrous if there was some exclusion for people with gundogs.

The noble Earl is saying to me that they are. I do not accept that. There is an area which is not covered by existing law and which needs to be. May I finish the point about gundogs or hounds. The amendment says that where somebody is acting with the permission of the owner or occupier then they are all right. That would surely cover any legitimate shoot or hunt. As I understand the practice in the countryside certainly nobody around me would dream of retrieving birds on my land, and where people were shooting on my land I would not have them retrieve on my neighbour's land without clearing it with the keeper, or owner, or farmer. I should have thought that that was standard practice in the countryside.

To go on to what the existing law does not cover, the amendment says that people have to keep dogs under close control or on a lead of reasonable length when walking down a public footpath. If you do not do that at the moment, you are not necessarily committing an offence. The dog has actually to be worrying sheep, or about to worry sheep. I, as a walker and dog-owner, see no objection to people using public rights of way in the country in a reasonably sized enclosure where there are sheep or lambs, but having an obligation on them to keep their dog under close control, or on a lead. That is a higher duty than to stop it worrying sheep, and would make prosecutions easier to bring.

I am a farmer as well as a walker and dog owner. I know that this is a problem that particularly concerns farmers. I do not keep sheep, and to that extent I do not have an interest in the amendment, but nobody could be a Minister in Northern Ireland for 2½ years without knowing that there are farmers in areas like that who find the problems of the worrying by dogs of sheep one of the most annoying, aggravating and concerning of all of the agricultural problems they have to put up with. It would greatly strengthen the position of walkers in the countryside as well as sheep farmers if a reasonable amendment of this sort was put in the Bill. If it needs tidying up in the drafting, that can be done in another place with Government advice. I hope that the noble Lord will press his amendment.

5.45 p.m.

Baroness Elliot of Harwood

My Lords, mention has been made of my speech. The problems are very difficult and very bad. I supported the last amendment that the noble Lord, Lord Stanley, moved and I intend to support this one. Gundogs are not a problem because as the noble Lord, Lord Melchett, said, they are under control, or should be. They nearly always are. I have never lost any lambs or sheep with retrievers. It is the dogs that are excited and enjoying themselves rushing about in the open without any control that are the danger. They really are a danger.

I am surprised that my noble friend on the Front Bench says that there is legislation which covers all this. All I can say is that it cannot be used very much since we have been told, and I have been told too, that 6,000 sheep are killed each year. It is far too many. If the legislation that we have today allows that to happen, then surely there ought to be something more powerful to stop this. I do not know whether this particular amendment is exactly right, but it is the only amendment down that deals with this matter, and I shall support it.

Lord Beaumont of Whitley

My Lords, I too should like to support this amendment. It does something useful and strengthens the law. The Government have said that the law is satisfactory as it is. It is not quite satisfactory enough in the situation of what I might call dogs loitering with intent. There is a need for strengthening the law there, and this is a reasonable amendment. I just have one major reservation. Despite what the noble Lord, Lord Melchett, said, I do not think that this in fact covers the case of hounds. In fact there was one moment when I thought this was probably an amendment secretly backed by the noble Lord, Lord Houghton.

It seems to me that 22 couple of the Beaufort could well lead the noble Duke, the Duke of Beaufort, in for a fine of some £8,800 at any given moment, and this is a point which ought to be looked at. It may be that subsection (2)(b) covers the situation, but it does not always happen these days that the master of a pack of hounds can ensure that his hounds only run over the land where he believes that he would have the consent of the owner or occupier. He can, of course, keep his own followers and horses off it, but he cannot necessarily stop hounds in time. There would seem to be a serious point here which should be looked at before such a clause went into legislation. Nevertheless, it is a good amendment and in principle it should be supported.

Lord Houghton of Sowerby

My Lords, although this Bill permits dogs to pursue otters as long as they do not kill them, I am nevertheless not in favour of dogs being allowed to pursue sheep. That inconsistency between the wild animal and the farmer's pet I leave with your Lordships to ponder. This problem arises because two successive Governments have not really grasped the nettle on the problem of dogs in society. This is part of it.

I always feel from long experience that, when Governments say that something is not necessary and the lawyers say that it is unworkable, that is the time seriously to consider putting it in the Bill. The reason is that if the Government are stuck with amendments they do not want, they have great difficulty in getting them out again. They have to give very plausible reasons for taking amendments out of a Bill that have been put there by the will of the House. I believe the Bill would be stronger with the amendment. Obviously it would not cover all the problems associated with dogs worrying sheep, and those who live in moorland areas know well that the main problem arises from stray dogs or gangs of dogs going around in groups doing enormous damage, and it is extremely difficult to identify the owners. Nevertheless, if the noble Lord, Lord Stanley, feels in a stubborn frame of mind, I will certainly support him.

Lord Middleton

The trouble, my Lords, is that it is not the existing legislation that is at fault but its enforcement, and in my view the existing legislation is adequate. I am a farmer, I have had sheep worried and I have been desperately worried about it, but the amendment is too complicated and I do not agree with my noble friend Lord Stanley that legislation should be passed simply to bring something to the attention of the public. If every time we wanted to bring something to the notice of the public we legislated about it, we should be legislating eternally, even more than we are at present.

Viscount Thurso

My Lords, it would be a mistake to let this debate pass without making clear the one real point here, and that is that you do not have to have a case of worrying to have a case of damage to sheep. If you have a field full of heavily pregnant ewes and people are regularly going for walks through that field with their dogs, the dogs need run only a short distance towards the sheep to make the sheep run. If the dogs are then called back and return to their owners, those dogs have in no way attempted to worry the sheep. But if heavily pregnant ewes are constantly being made to run, eventually some of them will abort, and that is distressing to the sheep and damaging to the farmer. Therefore, it seems only reasonable that people walking through fields should be enjoined to take the precaution of having their dogs closely under control. To worry a sheep, a dog must lay a fang on it or attempt to do so. The amendment would cope with the situation where a dog was not attempting to lay a fang on sheep but was merely rushing around in play and was not under proper control.

Lord Donaldson of Kingsbridge

My Lords, I support the amendment but there seem to be problems with subsection (2)(b), which does not seem to have any point. The point of the first provision, roughly speaking, is that if you walk across a farm with a dog without permission, you are liable to be fined £200 if, over the edge of the hill, there are some sheep. That is severe but I am in favour of it; people should not walk about farms with dogs not under control. However, subsection (2)(b) seems pointless because I could say, "I did not think the farmer would mind. I have often been through that field". One can visualise the sort of argument that is likely to be adduced under that provision, which spoils the strength of the amendment.

Lord Mowbray and Stourton

My Lords, on balance I believe my noble friend Lord Renton got it right when he said that the legislation of the land is reasonably adequate. The noble Lord, Lord Donaldson, made a sensible point; subsection (2)(b) is the nub of the amendment and we must remember that we are here not talking about moorland but about people walking across farmland and fields, and when we are discussing farmland, as we are in this case, the law is moderately adequate. We are relying in the Bill on voluntary effort more than compulsion and I believe the Bill as drafted covers what is here concerning us. In the country, generally speaking, one knows the people with dogs, and we are not speaking of the situation on the edges of towns where there might live hundreds of thousands of people.

Several noble Lords

Yes, we are.

Lord Mowbray and Stourton

I do not think we are, my Lords. We ate legislating basically for the countryside. In any case, on the edges of towns sheep are not necessarily the best form of stock.

Several noble Lords

Oh?

Lord Mowbray and Stourton

I do not think they are, my Lords, and in my view the Bill is adequate as it is.

The Earl of Avon

My Lords, perhaps I may have permission to take up the point made by the noble Viscount, Lord Thurso. If sheep were chased, the owner of the dog would be liable. The dog does not have to bite the sheep. If it were proven that they were aborting because the dog went off course, the owner would be liable.

Viscount Thurso

My Lords, my point was that a dog need only gambol around in a field full of sheep and the sheep will run, because that is their natural reaction.

Lord Stanley of Alderley

My Lords, in answering some of the points that have been made, I should like to make it clear first that this is obviously a nonparty matter, and even the agricultural lobby—the "mafia", as I believe we are called by the noble Lord, Lord Houghton—are somewhat divided on it, which I am sure will please him. To answer the point made by my noble friend Lord Avon, probably on this occasion he needs driving mirrors. If he thinks the law is working correctly, then I would support the remarks of my noble friend Lady Eliot of Harwood; 6,000 dead is not a very good record. Added to that, as the noble Viscount, Lord Thurso, said, damage is not in death but in abortion and malpresentation at birth. I have experienced a great deal of that, and it is heartbreaking.

My noble friend Lord Massereene and Ferrard asked how we should know it was, and my noble friend Lord Peel wondered why it should be 25 hectares. I am afraid that figure was taken out of the hat. It could not be larger because one would not want to stop a dog walking in a national park, and that could happen, as the noble Lord, Lord Melchett, pointed out. My noble friend Lord Gibson-Watt—I am always fearful of talking about him because he was my first company commander and I felt I was getting one of those dressing-downs I got rather a long time ago—should note that the outlying areas such as those in which he lives are not really covered because I suspect they would be over 25 hectares. I would add—perhaps I should not say this—that sometimes magistrates do not take the same view as his obviously enlightened magistrates did.

My noble friend Lord Renton thought the amendment was weak or unnecessary. Others felt it was too strong. If that is the case, it must be about right. My noble friend then pulled my drafting to bits, particularly the drafting of subsection (2)(b), and the noble Lord, Lord Donaldson, made the same complaint. I can only tell the House that that provision was taken from the Deer Act. I hate to embarrass the noble Lord, Lord Northfield, but if the drafting is wrong in the Deer Act, then I suggest we haul that measure back to the House for the sixth or seventh time and redraft it; I am sure Lord Northfield would be delighted to do that. I could not do any better than Lord Northfield, who I think will confirm that the Parliamentary draftsman was responsible for the provision in his measure.

As for gundogs, my noble friend Lord Onslow was right to say that they would be covered by subsection (2)(b) or (2)(c)(ii). We must remember, as several noble Lords have pointed out, that this is a preventive measure. It is really the first time we have introduced preventive provisions and, after all, it is no good shooting the dog after it has been responsible for half the ewes aborting. As for hounds, if hounds do harm to my sheep or my neighbour's sheep they must be liable, no "ifs" or "buts". I do not stop hounds coming over my land and I do not wish to do so, but if they injure my sheep, they must suffer the penalty, just like someone's poodle. If hounds do no harm, having gone into the field of a very objectionable farmer—I do not know whether such a farmer exists; but let us suppose that he does—the farmer can take the owner of the hounds to court, and then it is up to the bench. Have we no trust in the bench? If the hounds have done no harm, nothing will happen to them. The owner might be fined three quid. At the moment, if hounds go through a field that is owned by a farmer who does not want them, it is up to the farmer to prosecute the hunt under existing law.

I shall not delay the House any further. I make no bones about it, I have to admit that I have blinkers on so far as sheep are concerned. I think that anyone who is a shepherd and who likes sheep becomes obsessed with them. Perhaps I am obsessed, but I make no apology for that. I would say to your Lordships that this is an instance where your Lordships' spirit is willing, but your flesh today is very weak.

Lord Dulverton

My Lords, before the noble Lord sits down—

Noble Lords

Order, Order!

6.1 p.m.

On Question, Whether the said amendment (No. 99) shall be agreed to?

Their Lordships divided: Contents, 70; Not-Contents, 88.

CONTENTS
Ailesbury, M.	Jacques, L.
Airedale, L.	Jeger, B.
Amherst, E.	Killearn, L.
Ardwick, L.	Kinloss, Ly.
Avebury, L.	Listowel, E.
Aylestone, L.	Llewelyn Davies of Hastoe, B.
Beaumont of Whitley, L.	Lloyd of Kilgerran, L.
Broadbridge, L.	Loudoun, C.
Brockway, L.	Lovell-Davis, L.
Brooks of Tremorfa, L.	McGregor of Durris, L.
Bruce of Donington, L.	Mais, L.
Caithness, E.	Melchett, L.
Chitnis, L.	Mersey, V.
Collison, L.	Mishcon, L.
Craigavon, V.	Northfield, L.
David, B.	Ross of Marnock, L.
Davies of Leek, L.	St. Davids, V.
de Clifford, L.	Sefton of Garston, L.
Donaldson of Kingsbridge, L.	Segal, L.
Elliot of Harwood, B.	Shinwell, L.
Elwyn-Jones, L.	Spens, L.
Gaitskell, B.	Stamp, L.
George-Brown, L.	Stanley of Alderley, L.—[Teller.]
Goronwy-Roberts, L.
Gregson, L.	Stedman, B.
Hale, L.	Stone, L.
Halsbury, E.	Swansea, L.
Hampton, L.	Terrington, L.
Hanworth, V.	Teviot, L.
Harris of Greenwich, L.	Thurso, V.
Henley, L.	Tryon, L.
Hooson, L.	Underhill, L.
Houghton of Sowerby, L.—[Teller.]	Wells-Pestell, L.
	Whaddon, L.
Hunt, L.	Winterbottom, L.
Hylton-Foster, B.	Wynford, L.

NOT-CONTENTS
Alexander of Tunis, E.	Grimston of Westbury, L.
Allerton, L.	Hailsham of Saint Marylebone, L.
Auckland, L.
Avon, E.	Halifax, E.
Balerno, L.	Harmar-Nicholls, L.
Balfour of Inchrye, L.	Home of the Hirsel, L.
Bellwin, L.	Hornsby-Smith, B.
Belstead, L.	Kemsley, V.
Boyd of Merton, V.	Kilmany, L.
Bridgeman, V.	Lauderdale, E.
Brougham and Vaux, L.	Long, V.
Campbell of Croy, L.	Lyell, L.
Chelwood, L.	Mackay of Clashfern, L.
Cockfield, L.	Mackintosh of Halifax, V.
Colville of Culross, V.	Macleod of Borve, B.
Colwyn, L.	Mancroft, L.
Craigton, L.	Mansfield, E.
Cranbrook, E.	Margadale, L.
Cullen of Ashbourne, L.	Middleton, L.
De La Warr, E.	Morris, L.
Denham, L.—[Teller.]	Mottistone, L.
Digby, L.	Mowbray and Stourton, L.
Drumalbyn, L.	Murton of Lindisfarne, L.
Dulverton, L.	Noel-Buxton, L.
Dundee, E.	Northchurch, B.
Ellenborough, L.	Nugent of Guildford, L.
Ferrers, E.	Onslow, E.
Fortescue, E.	Orkney, E.
Fraser of Kilmorack, L.	Peel, E.
Gainford, L.	Penrhyn, L.
Gibson-Watt, L.	Portland, D.
Greenway, L.	Reigate, L.
Gridley, L.	Renton, L.

Romney, E.	Strathspey, L.
Runciman of Doxford, V.	Swinfen, L.
St. Aldwyn, E.	Swinton, E.
Salisbury, M.	Trefgarne, L.
Salmon, L.	Trenchard, V.
Saltoun, Ly.	Trumpington, B.
Sandys, L.—[Teller.]	Vaux of Harrowden, L.
Selsdon, L.	Vickers, B.
Sempill, Ly.	Vivian, L.
Skelmersdale, L.	Westbury, L.
Soames, L.	Willoughby de Broke, L.
Strathclyde, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.10 p.m.

The Earl of Avon moved Amendment No. 100: After Clause 54, insert the following new clause:

("Regulation of traffic on public rights of way

. The Road Traffic Regulation Act 1967 shall have effect in relation to any footpath, bridleway or byway open to all traffic as if—

1. (a) any reference to traffic included a reference to foot passengers and persons driving, riding or leading horses or other animals of draught or burden; and
2. (b) any reference in section 1(3A) or 12 to foot passengers included a reference to such persons as aforesaid.").

The noble Earl said: My Lords, the possible control of equestrian traffic by means of traffic regulation orders has been debated on three previous occasions in this House during the past six months. Provisions were initially included in the Local Government, Planning and Land (No. 1) Bill. When the matter was debated at Report stage on Bill No. 2 on 30th October last, my noble friend Lord Bellwin said that we were inclined to the view that equestrian traffic ought to be brought within the scope of traffic regulations, but that we wished to hear any counter-arguments and to have the matter debated at greater length before bringing forward an alternative clause. We consider that debates have now taken place on this subject in both Committee and at Report on this Bill, and the extension of the traffic regulation order powers in the Road Traffic Regulation Act 1967 to cover equestrian traffic has the support of the Rights of Way Review Committee, chaired by Mr. Michael Spicer.

We have therefore decided to table this amendment to correct this long-standing anomaly. In view of the nature and scope of this Bill we have been obliged to restrict the application of this amendment to footpaths, bridleways and byways open to all traffic, and we have not included any amendments to the Road Traffic Regulation Act 1972. A futher tidying up of the legislation, to put equestrian traffic fully on all fours (if noble Lords will excuse the pun) with pedestrians and vehicles, will be left to a more suitable legislative opportunity. Our amendment will have a similar effect to the proposed amendments to the 1967 Act which were included in the Local Government, Planning and Land (No. 1) Bill, and in Amendment No. 555C which was moved by my noble friend Lord Stanley during Committee.

I think it is generally accepted that public rights of way can become virtually impassable to path-users after very wet weather or excessive use, and the amendment will, among other things, enable highway authorities to prohibit or restrict horses for periods up to three months under Section 12(1) of the 1967 Act to prevent further damage to the right of way and to enable it to recover. When considering making temporary orders highway authorities are required to have regard to the existence of alternative routes suitable for the traffic which would be affected by the order, and they are required to comply with the notification procedures laid down in Schedule 3 to the 1967 Act. There are no appeal procedures for temporary orders under Section 12, but there are such procedures for permanent orders made under Section 1. My Lords, I beg to move.

Lord Stanley of Alderley

My Lords, I should like to thank my noble friend for tabling this amendment. I hope he will not think I am ungracious when I say that I am surprised he has changed his mind in view of the way he treated me earlier on in relation to this amendment.

On Question, amendment agreed to.

Clause 55 [Ploughing of public rights of way]:

Lord Stanley of Alderley moved Amendment No. 101: Page 47, line 22, after ("(4))") insert ("after the words "A person" there shall be inserted the words "without reasonable excuse",").

The noble Lord said: This was a point raised on Report by my noble friend Lord Monk Bretton, and your Lordships will find the details in col. 633, on 16th March; but unfortunately we did not get an answer. The point here is that the addition of these words "without reasonable excuse" would allow a farmer latitude should he be prevented from restoring a footpath because of, say, illness or, perhaps, to quote a particularly unpleasant example which comes easily to mind today, the outbreak of disease, such as foot and mouth. I would remind your Lordships that the onus of proof is of course on the farmer to prove that he was unable to restore the path. I beg to move.

The Earl of Avon

My Lords, I thought that we had a fairly good discussion on this and came to the conclusion that what we had come up with was in fact reasonable. This amendment would mean that a farmer would have a defence for failing to comply with the restoration requirements as set out in subsection (4) of Section 134 of the Highways Act, as amended by Clause 55(3) of this Bill, if he had a reasonable excuse for not complying with them. Clause 55(3)(b) provides one exception to the requirement to restore within three weeks; namely, exceptional weather conditions. This amendment would have the effect of broadening the exception to cover any "reasonable excuse".

The term "reasonable excuse" is obviously capable of a very wide interpretation. When we debated this issue during Report stage I think some noble Lords expressed doubt about even the term "exceptional weather conditions", and also other exceptions to the three-week restoration requirement. We considered that that exception was reasonable, but do not believe that it should be broadened any further. There would be no end to the excuses which a farmer might produce to justify his not restoring the path within three weeks, and it would mean that the restoration requirements would in effect be unenforceable.

However, if the farming and path-user interests can get together and reach agreement on a restoration formula which is acceptable to both sides and is likely to be enforceable, we would of course be willing to consider substituting it for what we have provided in Clause 55. This is a very sensitive subject, and I very much hope that my noble friend will not feel that he has to press this amendment.

Lord Melchett

My Lords, I agree with the noble Earl in that last sentiment. The provision in the Bill for "exceptional weather conditions" is a completely new one. There has not been that sort of let-out from the obligations to restore a footpath up until now, and I really think that to go a great deal further and be a great deal vaguer, as the noble Earl, Lord Avon, has said, and to put these words in, would make the position totally unenforceable. It seems to me that this is not quite right yet, and to that extent I agree with the noble Lord, Lord Stanley. For myself, I hope the footpath-users, the NFU and the other interests—the local authorities—will have another look at this in Mr. Michael Spicer's committee or elsewhere. I really do think that the right approach is to have an obligation to restore the footpath the day it is ploughed, with, then, some exceptions allowing for weather or other exceptional circumstances, like the one that the noble Lord, Lord Stanley, suggested, of the outbreak of disease.

I think that if the farming interests could agree to the reinstatement on the day of ploughing, then it would be possible to get a more sensible package of exceptions for exceptional weather or other exceptional circumstances; but while there is the "restoration within three weeks" provision, I think that is already on the verge of being unenforceable and this would make it totally so—and it is unacceptable to the local authorities, let alone to users of footpaths or bridleways. I would echo what the noble Earl, Lord Avon, has said, that the various interests might get together and have another look at this. I do not think there is very much between the different groups, and if they looked at it in a little more detail I think an acceptable formula could be hammered out. I hope the noble Lord, Lord Stanley, will not press this amendment for the moment.

Lord Stanley of Alderley

My Lords, I am pleased to have had this discussion. There seems to be an agreement here that we have not quite got it right, and I wonder whether my noble friend on the Front Bench could give some assurance by nodding his head that it would be looked at again, perhaps in another place. We have tried to get the right words, but I agree with the noble Lord, Lord Melchett, that they are not quite right, and I think it wants looking at again.

The Earl of Avon

My Lords, I think my noble friend will see that I said, if I may paraphrase my own words, that if the farming and path-user interests could get together we would of course be willing to consider it again. I hope that will satisfy my noble friend.

Lord Stanley of Alderley

My Lords, I thank my noble friend very much. I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 57 [Decision by appointee of Secretary of State]:

Lord Bellwin moved Amendment No. 102: Leave out Clause 57.

The noble Lord said: My Lords, on this occasion I should like to speak also to a series of amendments: Nos. 102, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 153A, 154, 155, 156, 157, 161 and 167.

The amendments that the noble Lord, Lord Melchett, moved on Report in relation to the transfer of jurisdiction to local authorities for the determination of disputed rights of way matters also significantly changed the procedure for the making and determination of the relevant orders. Because we were primarily concerned with matters of principle, the necessity for, and consequences of, these procedural changes in the context of the continued involvement of my right honourable friend the Secretary of State in rights of way matters were never debated.

The effect of the noble Lord's amendments and, for that matter, the Bill is such that in future both public path and definitive map orders would at the outset be "proposed to be made" and only made after the order, albeit in draft form, had been publicised and any objections or representations considered. We believe that this procedure is relevant only in the situation in which the same authority determines the proposal. That situation no longer prevails.

The associated procedure is, in our view, not appropriate in the circumstances where the responsibility for the determination of disputes resides with my right honourable friend the Secretary of State and is also inconsistent with the procedure that applies across a wide range of Planning and Highways Act orders. The effect of the Government's amendments as far as public path orders are concerned is to restore the status quo and whereby the authority having first decided that a path should be created, diverted or extinguished make the necessary order to give effect to that decision. That order is subject to confirmation by my right honourable friend the Secretary of State on being challenged. They also apply a comparable procedure to definitive map orders.

In our view there is no apparent justification for departing in the case of public path orders from a procedure that has worked perfectly well for 30 years and is understood by the public. We have also taken the opportunity in the additional time available since Report to give further consideration to other aspects of the Spicer Committee's proposals for publicising orders. The particular proposals that we have been able to implement are embodied in the amendments. I beg to move.

On Question, amendment agreed to.

Clause 62 [Financial provisions]:

The Earl of Avon moved Amendment No. 103: Page 51, line 12, leave out ("or other").

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

On Question, amendment agreed to.

The Deputy Speaker (Lord Jacques)

My Lords, we now return to Amendment No. 93, which is an amendment to Clause 64.

Clause 64 [Minor amendments]:

The Earl of Avon moved Amendment No. 93: Page 52, line I, after ("11") insert ("(1)").

The noble Earl said: My Lords, this is a purely drafting amendment to clarify the subsection of the 1949 Act to which this clause refers. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendments Nos. 94 to 96:

Page 52, line 7, at end insert— ("(3A) In section 2(8) of the 1968 Act (publicity and information services) for the words from "encouraging" onwards there shall be substituted the words "informing persons resorting to the countryside of their rights and obligations.").

Page 52, line 8, leave out ("the 1968") and insert ("that")

Page 52, line 10, leave out ("and") and insert ("(4A)").

The noble Earl said: My Lords, these are drafting amendments. I beg to move them en bloc.

On Question, amendments agreed to.

The Earl of Avon moved Amendment No. 104: Page 52, line 13, leave out ("Parts II and III of").

The noble Earl said: My Lords, this amendment meets the suggestion made at an earlier stage by my noble friend Lord Stanley of Alderley that Ministers and public bodies should have regard to the economic and social needs of rural areas in all their actions under the Bill. I beg to move.

Lord Stanley of Alderley

My Lords, I should like to thank my noble friend. He has given me two amendments and I am sure that he would be hurt if I did not thank him.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 105: Page 52, leave out lines 20 to 30.

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

On Question, amendment agreeed to.

The Earl of Avon moved Amendment No. 97: Page 52, leave out lines 31 to 35.

On Question, amendment agreed to.

Clause 66 [Short title, commencement and extent]:

6.26 p.m.

Lord Stanley of Alderley moved Amendment No. 106: Page 53, line 12, leave out from ("the") to end of line 13 and insert ("Wildlife and Countryside Act 1981").

The noble Earl said: My Lords, I think there has been a mistake in so far as the amendment should read "Countryside and Wildlife Act" and not "Wildlife and Countryside Act". I am sorry to stop the "rat race" for a minute, but I have a word to say on this. I would have tabled this amendment at the beginning of the Committee stage but, having listened to your Lordships since Christmas, I am now forced so to do because I have come to realise, far more than at the start of the Bill, that you cannot have wildlife without countryside. It is that point which has been brought home to me so forcefully in all these debates, and particularly those on habitat preservation, on moorland conservation and on sites of special scientific interest. It is for that reason that I should like to see the Title of the Bill changed to put "Countryside" first.

There is another reason. Although we all agree in what we want and where we want to go in the management of the countryside, we differ as to method. The Bill is leaving this House resting on voluntary methods—which, to my mind, is correct—with no hint of backup powers. This may sound an easy and platitudinous attitude; and your Lordships, particularly noble Lords opposite, may think that I am raising the victory flag; but I ask your Lordships not to take such a view; because it has been made clear to me by such of my noble friends as Lord Craigton and Lord Buxton (who is not here) and by noble Lords opposite—Lord Melchett, Lord Winstanley, Lord Donaldson and the noble Baroness, Lady David—that my voluntary approach, unfortunately for me, carries great responsibility. Farmers will have to behave with the utmost responsibility. To put it in agricultural words, "the buck stops with us".

I am prepared to accept this responsibility and to put my head on the block, on one condition. It is that when one of my fellow farmers ruins an SSSI or behaves irresponsibly, the media or the extreme conservationists or merely those who would like compulsory powers will consider quietly and fairly whether the alternative philosophy would have been any more effective. I know that your Lordships will take such an attitude; and that when we make mistakes, as inevitably we will—and I am talking about farmers—you will bear this in mind. I hope you will also bear in mind that we are privileged to start with a very substantial credit balance for living and working in the most beautiful countryside in the world, made by the Almighty but with very—and I repeat "very"—considerable help from farmers, not only in the past but also today and, I truly believe, tomorrow.

Therefore I hope that all Members of this House will be able to agree with the philosophy behind my amendment, although I am convinced that the spoilsports of the parliamentary draftsmen will advise my noble friend on the Front Bench not to accept it. I beg to move.

Viscount Massereene and Ferrard

My Lords, I should like to point out to my noble friend Lord Stanley that he said that one cannot have any wildlife without the countryside. Of course there is an abundance of wildlife in the oceans of the world. I should like to make that point just to correct him.

Lord Renton

My Lords, on this occasion, I most seriously and enthusiastically support my noble friend Lord Stanley. It is much more felicitous that the Bill should be known as the Countryside and Wildlife Act. Also, it will be abbreviated in due course, in the jargon of Whitehall. It will become known either as the WCA or the CWA. For myself, I prefer the latter.

The Earl of Avon

My Lords, I do not think that our parliamentary draftsmen could be in any way called spoilsports. They have worked very hard to make sure that we can have half the sport that we are having. I was interested in my noble friend's philosophical argument and, frankly, can find very little against it. I personally saw this amendment in one form this morning at 11.30; in another form at 1.30 and in its final form about half an hour before we began this afternoon. That is really my case. It is a little bit late.

After these prolonged debates it is tempting to start afresh with a new Title to the Bill. Perhaps a change of Title might serve as camouflage and reduce the number of amendments which the Bill might otherwise attract in another place. On balance, however, I should be reluctant to see the Title changed. The Bill has already become well-known in its present guise and I am sure that people are already aware of the importance of the Bill in relation to countryside matters. The Title also reflects the order of the clauses in the Bill and is consistent with the contents. At this late stage, I cannot ask my noble friend to do more than not press the amendment; but his suggestion will be on record, and it can be debated further.

The Earl of Caithness

My Lords, I disagree with my noble friend Lord Stanley that it was wrong drafting. I think it was wrong printing. It was drafted correctly. The list of amendments that I picked up on Friday showed that the amendment was put down in the form that we intended.

The second point is that it would be a great benefit in the countryside in trying to interpret and explain this piece of legislation when it becomes an Act if its Title was "Countryside and Wildlife". I have no doubt that it is a fine point that we are trying to get across. It would certainly benefit me—wearing my hat as a chartered surveyor—in going out and talking to owners, occupiers and farmers, in that the full meaning of the Act could be put across more easily if it were entitled "Countryside and Wildlife", rather than "Wildlife and Countryside".

Lord Hunt

My Lords, I should like to say from this elevated position—and suffering as I am from altitude sickness, and lack of acclimatisation—that I entirely agree with both the logic and the spirit of this amendment.

Lord Craigton

My Lords, I think this Bill is about wildlife living in the countryside and I prefer the "WCA".

Baroness David

My Lords, we are absolutely delighted to hear what the noble Lord, Lord Stanley, said and that really habitats as well as wildlife are at long last being recognised as important. We are delighted to hear the responsible attitude that he is going to take. We just hope that all the farmers do so. At this late stage of the Bill, it would cause great confusion if the Title were changed. Such a lot has been going on over the months and months during which we seem to have been dealing with it. I think that we will be against the change.

Lord Stanley of Alderley

My Lords, I thought that I would get that reception. I hope that the Parliamentary draftsmen will not think ill of me if I call them spoilsports. I am sure that they would take it in the spirit that I meant it. By and large, I have achieved what I wanted to achieve: to point out that we as farmers realise our responsibilities in the countryside. I am sure that your Lordships will appreciate the point I made. The last matter that I shall raise on this Bill is one of agreement between us all about the philosophy behind it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Avon moved Amendment No. 107:

Page 53, line 14, leave out ("This") and insert ("The following provisions of this Act, namely— Part II, except sections 29, 30, 31, 35 and 43; sections 53 to 56 and 58; and Part IV, except section 64(1) and (3) and section 65(1) so far as relating to Part II of Schedule 15, shall come into force on the expiration of the period of one month beginning with the passing of this Act.

(2A) The remaining provisions of this").

The noble Earl said: My Lords, it may be convenient if I speak also to Amendments Nos. 158, 159, 160, 163, 164 and 165 to Schedule 15. These amendments meet the point raised by my noble friend Lord Renton at an earlier stage that it would be convenient if as many as possible of the provisions in the Bill could be brought into effect without the need for commencement orders. It may prove possible to provide for even more provisions to be treated in the same way and, if so, the Government will take appropriate action in another place. I beg to move.

Lord Renton

My Lords, I am grateful to my noble friend for moving this amendment and accepting the principle that as much of the Bill and as many of the provisions as possible should be brought in together at an early stage. His amendments go further and are bolder than the one that I moved in the first place. For that also I am grateful. I only hope that his good example will be followed by other Ministers.

Lord Melchett

My Lords, I have looked at this amendment twice and each time thought it meant different things. Am I right in assuming that Part I—and Part III for that matter—will be brought in by order and that they are not going to come into effect within a month of the passing of the Act? If that interpretation is correct, why is not Part I being brought into force immediately? Of all the provisions in the Bill, those in Part I—anyhow, almost all of them—are the obvious candidates for being brought in immediately. In a number of other parts of the Bill—in Part III—there are changes involving local authorities and order-making powers. Part II has voluntary codes of practice. I should have thought that Part I ought to have been brought into effect immediately, though maybe there are one or two aspects that could not be.

As I read the amendment, Part I—and, for that matter, Part III—will be brought into force by order-making power later. I could not understand why Part I had been omitted. I thought from memory, although I have not had the opportunity to check, that the noble Lord, Lord Renton, particularly wanted Part I in his amendment. I see the noble Lord is shaking his head. I remember saying that it seemed to me that Part I could be brought in to force straight away.

Lord Renton

My Lords, if the noble Lord will allow me, that was not so. I picked out particular clauses, but I did not mention Part I, as such, for bringing into operation especially early.

Lord Melchett

Well, my Lords, I was wrong about that. I certainly thought that Part I should be brought into effect straight away. I cannot see any reason why it should not be so. I cannot see the reasons for delay on other parts of the Bill applying to Part I. I do not know whether the noble Earl is able to confirm that I am right and give me an explanation. If he is not, then maybe he would write to me.

The Earl of Avon

My Lords, I am not able to satisfy the noble Lord, but I take his point. The amendment was produced at the very last minute; at one stage we did not think that we could get it through in time. I shall look into what he has said. I would remind him that I did say that it might be possible to provide for more provisions to be treated in the same way, and we shall look into this and see why Part I is not.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 108: Page 53, line 22, after ("31") insert ("(Restoration where order under s. 29 is contravened)").

The noble Earl said: My Lords, this amendment is consequential on Amendment No. 77. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Birds which are protected by special penalties]:

6.40 p.m.

Lord Burton moved Amendment No. 109:

Page 54, leave out line 37 and insert—

("Harrier, Marsh	Circus aeruginosus
Harrier, Montagu's	Circus pypargus
Harrier, Pallid	Circus maerourus").

The noble Lord said: My Lords, I am afraid that when I moved this amendment on Report I must have been somewhat incoherent, for while I thought I had said "osprey's egg" I found in the Official Report that I had said "ostrich egg". I withdrew the amendment on Report to give the Government a further chance of looking at this proposal. It has also given me an opportunity to look at what was said. I think we were perhaps somewhat misled, for we were told that licences would be issued for serious damage being done by this bird to game or other birds. But that is not the case, for as long as these birds remain on Schedule 1 it is extremely unlikely that one would get a licence. The hen harrier is increasing very rapidly, as we heard from all sides of the House. Twenty years ago it was perhaps a rare bird. But now it is steadily increasing its range, and though it may not yet be very numerous in all parts of England it is very numerous all over the likely parts of Scotland, and I believe it has established itself very strongly in Wales. In the North of England, too, it is also fairly prevalent. To leave this bird on Schedule 1 can only bring the whole of Schedule 1 into contempt. It is lowering the whole tone, where there are rare birds, to put this bird which, without having any protection, has been increasing rapidly, on to it. I cannot see why. Perhaps my noble friend can tell me why they have suddenly decided this bird not having been protected before, that it is now necessary to protect it.

This amendment does not in fact remove the harrier from protection. It only removes it from the sections which give it special protection. I therefore suggest that this amendment is not only for the good of the countryside but for the good of bird protection in itself. I therefore commend this amendment to your Lordships and I beg to move.

Earl Peel

My Lords, I should like very much to support my noble friend on this. We have heard figures from both sides of the House on the hen harrier and I do not know which to believe. I can only speak from my own experience and, having spoken to people in Scotland, the North-West of England and Wales, there is no doubt at all that the hen harrier is on the increase. This is a problematical bird, particularly with game birds. I think at times that one tends to forget the importance of the commercialism of game shooting and the benefit thereof to the countryside. I do not think there is any doubt whatever that if the hen harrier savaged fish farms or livestock it would certainly not be on the Schedule 1, Part I, list. I do not know whether my noble friend is going to press this amendment, but I would sincerely hope the Government would watch this bird very carefully in the future, whether through binoculars or not, and, as the noble Earl, Lord Swinton, said, perhaps if the bird were shot it would keep it in the air more often! It is a destroyer, and I hope the Government will keep an eye on it in the future.

Lord Melchett

We have had, my Lords, debates on this during Committee and Report stages. There seemed to be a fair consensus, particularly at the Committee stage when we had a very full debate on it, that the Bill was right. I think I heard the noble Lord, Lord Burton, suggest that the Bill introduces some change in status; but as I understand it that is not the case. The hen harrier is a Schedule 1 bird at the moment and the Bill merely maintains its position as such. The population has been relatively low for quite a long time—something between 500 and 800 pairs is the information that I have. It may be slightly on the increase, but it is a very slow increase and certainly not on anything like the scale of the sparrow hawk, which has been taken off Schedule 1 of the Bill, I think mistakenly, although of course it is still protected.

At the Committee stage, when I think I am right in saying that the noble Lord, Lord Burton, was not here—he will correct me if I am wrong—I reported on the fact that a considerable amount of research was currently being done into the hen harrier and its effect on the grouse populations. I said that the sensible course, as I saw it, was to wait for the result of that research before coming to any different conclusion from the existing position.

I spent the weekend reading some information which had come my way about the diet of marsh harriers, which we have hunting over the land which I farm. I had assumed from watching them that their prey consisted entirely of pheasant chicks but it appears from people who have looked at the remains around the nests that that is not the case at all and the prey, as with many birds of prey, is very opportunistic. It includes a number of rats, mice and other small rodents. The bird species seem to be mainly starlings, with a number of other small birds. Undoubtedly the odd pheasant chick is taken, but this demonstrated to me how wrong my personal observation could be when set against a careful scientific inquiry.

The information which I have on hen harrier predation on grouse tends to show—this was from research conducted in the early 1970s—that the amount of grouse available to be hunted was not in fact affected by the harrier population and that the harrier predation was extremely small. A number of other species were taken as well as grouse, but some grouse—a very small number indeed—were taken and the population as a whole, in areas where there were hen harriers hunting and where there were not, clearly was not affected by their presence. That is what scientific research shows, and I suggest that your Lordships should take some note of it.

The research to which I have referred, which was published in 1978, also said that in the area where the research was conducted there had been complete stability of harrier populations. They had not fluctuated in the way that birds of prey who are dependent on small mammals very often do fluctuate. The explanation was that there are a number of other small birds—not grouse or grouse chicks—which seem to make up the bulk of the hen harriers' diet. There does not seem to me to be any justification whatsoever for removing this bird from Schedule 1, and that seems to have been the consensus of your Lordships on the two previous occasions when we have discussed it. I hope the Government will continue to resist it.

Viscount Massereene and Ferrard

My Lords, I cannot support my noble friend on this: I support what the noble Lord, Lord Melchett, has just said. T have hen harriers on my property in Scotland and the extraordinary thing is—I have a few grouse and plenty of golden eagles and peregrines—that the grouse population remains completely static, exactly the same. I have seen hen harriers kill oyster catchers, for instance, and quite a lot of other birds. I agree that on a heavily-stocked grouse moor they can be a nuisance and they will kill grouse and it might actually even affect a grouse drive if the hen harrier suddenly appeared. If that happened, it might make the grouse go in divers directions.

Twenty years ago the hen harrier was an extremely rare bird on my estate. We certainly have more now but that has been due to the protection that they have had. I was rather surprised when my noble friend behind me said that he was surprised the hen harrier was on the protected list in Schedule 1. It always has been protected, or at least it has been protected for the last 20 years; so I am afraid I cannot support my noble friend.

The Earl of Avon

My Lords, I have listened carefully to my noble friend, but I am still of the opinion, I am afraid, that this amendment is not justified. Studies have estimated that the British population of the species to be in the region of 500 pairs. This figure was derived from a consideration of the distribution of hen harriers as shown in the Atlas of Breeding Birds in Britain and Ireland, prepared by the British Trust for Ornithology from nationwide reports and on a detailed study of densities of hen harriers in a few study areas, which represented a sample of suitable habitat from optimum to poor. By combining these two types of research, the statisticians among your Lordships will recognise that extrapolation can provide estimates than can reasonably be relied on.

The species is listed on Annex 1 of the Birds Directive as there are only about 2,500 pairs in Western Europe. We have a special responsibility, as our population has partly recovered from particularly low levels and may be holding its own. Unfortunately, there is some evidence of further declines in the last few years. In Orkney, for example, there has been a 10 per cent. drop in females and a 33 per cent. drop in males. The species have disappeared from the Kielder Forest area and almost disappeared from Galloway. I also have some comments to make about research which has recently been carried out, but I shall not take up the time of the House as the noble Lord, Lord Melchett, has covered that ground.

The advisory committees and the NCC have considered this species very carefully and several times. I hope that by my remarks your Lordships will realise that the Government have looked at the position very carefully. They remain adamant that it more than justifies the special protection which has been given. So far as my noble friend Lord Peel is concerned, I do not think it is necessary for me to say that I will undertake to keep the position under review, because it is quite apparent that it is being kept very closely under review. I hope that my noble friend will take that in the spirit in which it is meant, and I trust that my noble friend Lord Burton will not wish to press this amendment.

Lord Burton

My Lords, I may have been wrong about the schedule. I am not so good at the papers; perhaps I may be in the field. It is not the case that there has been only a slow increase; there has been a very rapid increase in these birds. If they were to continue like this, I should be very concerned about the few remaining partridges that we have. To say that predation is not very large on grouse leads only to further incredulity of what is alleged to be scientific research. We see it happening all the time. We know that they are predators and we also know what damage they do.

My noble friend who has property in Mull says that they do not do any harm, but one would have great difficulty in finding them in Mull. There are very few grouse. These birds terrify the other birds and there is nothing which will clear a hill of grouse more quickly. They scare the grouse even quicker than an eagle. If the wind is in a certain direction, the whole lot will disappear for miles downwind. The Government say that there are only 500 pairs, but we discussed this on Report. The noble Lord, Lord Donaldson, told us that there could be no counting without someone coming round and telling you that he was going to count on your ground. We have already had it. But there are large areas where there has been no counting, and the allegation of 500 pairs gives rise to even more incredulity about what we have been told.

We were told that they have disappeared from Kielder and Galloway. Why is that? It is because the trees are now too big and they cannot scavenge across the old ploughed ground where they were getting birds before. I know that the noble Lord lives in London and has to take advice from these people, but he should be very careful about the advice that he is getting. This is what frightens a number of us on this side. A lot of this advice is quite inaccurate and we are not at all happy with it. That is why we are frightened that we will get not licences to do what we know is necessary for protection. I know that the Government have cohorts outside and, if I am not getting any support from the other side, there is not much point in pressing the amendment. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Birds which may be killed or taken]:

[Amendment No. 110 not moved.]

6.54 p.m.

Lord Burton moved Amendment No. 111:

Page 56, line 30, at end insert—

("Goosander

Mergus merganzer").

The noble Lord said: My Lords, with this amendment I should like to speak to Amendment No. 112. These amendments deal with goosanders and merganzers. On Report, I had support from all sides of the House and I withdrew the amendment because I thought that the Government ought to have a further investigation into this matter. Unfortunately, I believe that my noble friend went to Edinburgh University where he had a fairly restricted report. Had he gone to Stirling University, he would probably have had a very different answer.

These birds are hosts to various kinds of worm. Apart from the eye-fluke worm, they are also hosts to the tapeworm and the red or spiruid worm, as well as others. If your Lordships look at the map, you will find that throughout Scotland there are a number of loch na mealls—"beasties" or parasites of the loch—my Gaelic is not very good. Apparently, there are a number of lochs which are already polluted with these worms and parasites. What happens is that these birds are hosts to these worms and they pass the eggs through their droppings, which are then eaten by snails or small plankton—type little "beasties", which are in turn eaten by the fish.

The eye-fluke worm works on the eyes of the fish. It works through its body after it has been eaten, till it gets to the eyes and, when the eyes are damaged and the fish is swimming near the surface, it is very easy for the birds to re-catch these fish so that the cycle goes on increasingly. These red worms are very nasty if they get into human beings. Smoking a fish does not cook it and, by taking from the wild a fish that has been smoked, human beings can very readily pick up these worms.

These birds, also, were rare in the 1940s, but they have steadily increased and I think I am right in saying—I may have made a mistake the last time—that they have not been on the protected list up till now. So we are getting a change this time and I do not know why, because they, too, have increased enormously. They are now very common in Scotland. Off the island of Gigha, you can see as many as 2,000 on one raft. This is quite an amazing sight, but it is not the total population. It just shows the density that we are getting. They are steadily increasing, and I therefore feel that there is no need to put them on the protected list.

My noble friend on the Front Bench may say that we can get licences, but the licensing situation is most unsatisfactory. It is increasing bureaucracy and it seems quite unnecessary. The fishing interests—the Association of District Fishery Boards and so on—felt quite secure and happy about the licensing situation, but after listening to various debates on Report I am most unhappy about it. I think my noble friend told us that it is very unlikely that a whole watershed would get a licence. These birds fly up and down the river and, if you want to control them properly, you must have a large section of the river under control at one time. My Lords, I beg to move.

Lord Gibson-Watt

My Lords, I should like to support my noble friend Lord Burton. I think that the Government Front Bench have made a mistake over the goosander. The goosander is a pest. In fact, it is a greater pest in Scotland than it is in my part of the world. One of the things to remember about the goosander is that it is a very prolific breeder. Last year, I saw a brood of over 20. Therefore, the size of the population will grow very much if this bird is protected. I believe that the Government have taken this step with the goosander as a result of the EEC directive. If I am wrong, I should like to be corrected; but I very much support the amendment of my noble friend Lord Burton.

The Earl of Avon

My Lords, the goosander is undoubtedly fond of salmon, but there is no confusion in the Government's mind on this. If I may echo the words of the my noble friend Lord Gibson-Watt: Yes, it is because of the European Community. In terms of Europe, it is a rare bird. There are estimated to be 1,000 to 1,500 pairs in Britain, which is about 85 per cent. of the total population. We are therefore under a duty to ensure that any killing is strictly controlled and only allowed to protect fisheries and fish farms from severe damage. It is not a nationwide species, as my noble friend Lord Burton said when he moved the amendment, and it does not do damage in many areas where it is found. That is why we have decided that the proper method of control under the Bill is by issuing licences and not, as the amendment would provide, by listing it as a national pest.

The merganzer is mainly a salt water bird. It, like the goosander, is partial to young salmon but, except at certain short periods as the smelts are waiting in the estuaries before going out to sea, it does not take many. It is not quite so rare as the goosander but we still have about 2,000 breeding pairs, and in European terms we have a duty to protect and conserve it.

We are clear therefore that with our new licensing arrangements the proper course is to take this species off the national pest list and provide that fisheries should take control measures under a specific licence. As with the goosander, the policies to be adopted will be referred to the advisory body under the Bill, the Nature Conservancy Council.

With this explanation, I hope that my noble friend will not wish to press the amendment to have them put down as a pest but will realise that the situation of the birds, as he has emphasised very clearly in his own speech this evening, will enable the Nature Conservancy Council to keep the matter closely under review.

Lord Melchett

My Lords, perhaps I may say from this side of the House—I do not want to say very much because I do not think that anything new has emerged since we discussed this matter at Report—that now, as then, we entirely agree with what the Government have said about this amendment.

Lord Burton

My Lords, once again I have to say that the Government's advisers are wrong. There are 2,000 goosanders on one raft, yet the Government say that the total population of Europe is only 2,000 pairs. I cannot believe that half of them are on that raft. My noble friend says that they are not nationwide. It depends which nation he is referring to. The whole of Scotland has merganzers and goosanders. They may not be found throughout the United Kingdom as a whole. This information is extremely "dicey". We want to look very carefully at the composition of these bird protection lists as drawn up by the Secretary of State's advisory committee. People are protecting injurious birds for no apparently good reason.

I am very loth to withdraw this amendment, but probably I would lose it in a Division. Therefore, I had better not waste the time of your Lordships' House.

Viscount Massereene and Ferrard

My Lords, I agree with my noble friend that in Scotland there are apparently great numbers of merganzers and goosanders. I understood him to say that he saw a raft of 2,000 goosanders off the island of Gigha. It would be extremely interesting to know how my noble friend counted them. It must have taken a long time.

Lord Burton

My Lords, may I, by leave, reply to my noble friend's question. The goosanders are on the island of Gigha, which is off the West Coast of Scotland. They were counted by bird experts, not by me. Some of the very people who are supposed to be giving figures counted them, so they cannot be right in all respects. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 112 and 113 not moved.]

Schedule 5 [Other animals which are protected]:

7.4 p.m.

The Earl of Cranbrook moved Amendment No. 114:

Page 59, line 29, at end insert—

("Adder

Vipera berus

In respect of section 9(3) only").

The noble Earl said: My Lords, I beg to move Amendment No. 114. With it I should like to take Amendments Nos. 115 to 120. These amendments have the effect of giving a very limited degree of protection to all those native British reptiles and amphibians which are not already strictly protected under Clause 9, taken with Schedule 5. Therefore, unlike the noble Lord, Lord Burton, I am seeking to increase the degree of protection given to species under the Bill.

At the Report stage I moved a similar set of amendments, to which the noble Earl, Lord Ferrers, replied that he had asked the advisory body—that is to say, the Nature Conservancy Council—to review the species which had been listed in my amendment. I refer to the Official Report for 10th March, col. 215. I believe that adequate information is already available, particularly information which has been provided by the voluntary body, the British Herpetological Society. I believe that this information is sufficient to confirm a decline in the natural range and in the occurrence of these amphibians and reptiles within Great Britain. This is confirmed by a letter which the noble Earl, Lord Avon, has very kindly written to me. He wrote on 27th March confirming that the Nature Conservancy Council, while examining the evidence that is presently available, is in fact satisfied that this evidence does indicate a decline in the distribution of these animal species.

Further research, such as the research which is carried out to establish the possibly controversial numbers and ranges of birds of prey in this country, is excessively expensive. It involves a large number of research students and research associates and undoubtedly would cost a lot of money. If the information that is available is already adequate and if this information has been provided at no cost by a voluntary body, I believe that in general this information should be considered to be adequate to act upon.

To a great extent the decline which has been documented must be attributed to loss of habitat. It is of course this loss of habitat which a great many of the provisions of the Bill seek to remedy. However, as I have stressed on previous occasions during the progress of the Bill through your Lordships' House, amphibians and reptiles also suffer from direct exploitation by man. Amphibians and reptiles are being collected for sale, largely for the educational market and to a lesser extent for the pet trade. There is no doubt that the commercial trade in these species also involves importation. It is because a large proportion of these animals which come into trade in this country are imported that a situation of imponderables arises.

I have been informed, and I have as a result stated in this House, that most Council of Europe states already protect most of their amphibians and reptiles. I find it somewhat difficult myself to conduct the research to support this in detail because in the different member States of the Council of Europe there is a variety of agencies and legislative bodies which are concerned with the protection of species or the protection of habitats. For instance, whereas in many States it may be of national concern—as it is in our own—in Italy conservation is regulated by provincial assemblies. There is therefore quite a range of provincial regulations which differ somewhat in their impact.

None the less, I am convinced that in failing to protect the great majority if not all of our amphibian and reptile species, the United Kingdom would be in a minority among the Council of Europe members. Moreover, in a number of instances—I would cite in particular the Republic of Ireland and France—more stringent regulations have quite recently been, or are about to be, introduced as a consequence of the ratification of the Berne Convention.

The effect of stricter protection in other European nations which are at present supplying the market in this country is not yet known. I consider that it is essential to be prepared for all eventualities, and in particular to be prepared for a reduction or a drying-up of the available supplies of these animals coming on to the commercial market from existing sources in Europe. I consider that there is a primary need to monitor the trade in those amphibians and reptiles which do occur in our own country. I consider that information on trade is also essential to anticipate future protective legislation which may need to be more strict.

It is this sort of information which the advisory body, the Nature Conservancy Council, will be required to seek at the request of the noble Earl. I believe that it will be a most important item in the evidence for the Nature Conservancy Council in drawing up their assessment of current threats to our native populations. Within the framework of the Bill before us my amendments imply in fact no immediate changes to present practices, except that commercial dealings will require a licence, which I imagine will be comparatively simple to give and will not involve great expense. In return, it will provide invaluable information. On present evidence I believe that the control of commercial transactions is an appropriate level of protection for the species listed and I believe that the incorporation of my amendments in this Bill would make a future assessment of the need for stricter protection that much easier to obtain.

I hope that my noble friend on the Front Bench will feel that the advice I have given is at least as useful in making up his mind as the advice that the Nature Conservancy Council would be able to give and I hope he will be able to accept my amendment. I beg to move.

Lord Craigton

My Lords, with the exception of the adder, we would all welcome the presence of these little creatures in our gardens and on our land, if only because they are of true benefit to man in reducing the pest population. Where they are in danger of extinction it is because man or progress is destroying, or has destroyed, those features of the areas where they live that they must have if they are to survive and breed. Let us put these little reptiles and amphibians in the Bill now and if—which I doubt—later scientific advice is given to the Minister that we are wrong in relation to any of them, they can be taken out in Committee in another place. I support my noble friend.

Earl Ferrers

My Lords, I am grateful to my noble friend Lord Cranbrook for raising this, which of course he did at Report stage as well, and I am grateful to him for the information which his unique knowledge has given the House. When he said that he hoped I would consider that his advice was as good as that of the Nature Conservancy Council, I would merely say, far be it from me to draw the comparison. All I would tell him is that of course the Nature Conservancy Council is the body which officially advises the Minister and not—possibly with regret—my noble friend. He seeks to afford a measure of control over the trade in those reptiles and amphibians which are found on the British mainland, and that of course is a thoroughly creditable intention. But I am told that the Nature Conservancy Council have examined such evidence as is at present available and, while they are satisfied, as my noble friend Lord Cranbrook quite correctly says, that there appears to be a decline in the distribution of the species concerned, they are not yet in a position to advise my right honourable friend the Secretary of State as to what conservation measures, if any, would be appropriate in relation to the species which are listed by my noble friend.

The fact is that the Government wished to have this advice before acting and I am sure that my right honourable friend the Secretary of State would, as Clause 26(4) obliges him to do, consult these people once the Bill is enacted. These are people who are not just scientists and conservationists; they are people who might be affected by the proposal to make the the trade in these species subject to licence.

The amendment is in fact technically defective in so far as it refers to subsection (3) of Clause 9 as opposed to subsection (4), but I would not rest my argument on that. I merely hope that my noble friend will see fit to withdraw his amendment because, if the advice is such that conservation measures are necessary, I feel quite certain that my right honourable friend the Secretary of State will—if I may repeat the words that I used during Report stage—not hesitate to consider it favourably.

Lord Melchett

My Lords, we have supported the noble Earl, Lord Cranbrook on these amendments, all the way through the passage of the Bill, and I should like to see this amendment in the Bill. Obviously if the subsection number is incorrect it could be changed in another place. My worry would be that, while the list does not appear all that long, it is a fairly significant change, in that it would be the first time that something had been added to the schedule in respect of a particular section only. I thought that the noble Earl was very perceptive in seeing that that was a way of meeting the problem which he has brought up right through the passage of the Bill, and my worry would be that this might not be done in another place. I think it would be better to put this in while the Bill is in your Lordships' House and then, if it needed to be taken out or altered after the NCC had time to consider it, it could be altered in another place. Because it is something that has run right through our debates and we have spent a very long time on this Bill, it seems to me that at Third Reading it is fair for the House to come to a decision one way or another. It is not as if the NCC and a number of other people have not had time to consider all these points.

This is really all that remains of something that we saw as of fundamental importance but it was clear that we were not going to get the Government to agree to it, although I think they should have done. That was the reverse listing of mammals, reptiles and amphibians so that those groups would have been in the same position as birds; all of them would have been automatically protected except for the ones that needed to be listed either on a pest schedule or on a schedule which allowed people to kill them, for sporting or other reasons. That is what I think should have been done for reptiles and amphibians like these as well as for mammals, but it was not done. We have had to settle for second best in the case of mammals in the very valuable amendments to the Badgers Act but we have not managed to do anything for the species which the noble Earl has listed, and I think we should. There is a real problem, and the noble Earl has produced the evidence time and time again to demonstrate the nature of the problem. Personally, I should like to see these amendments in the Bill.

Earl Ferrers

My Lords, I should not wish to abuse the laws of procedure but, with permission, I should like to say just one thing. The whole way through this Bill we have relied upon the advice of the Nature Conservancy Council. It has always been said that we should rely upon their advice. Here is the one case where the Nature Conservancy Council have in fact not said that this should be done and have said that they would wish for time before they give such advice. It really seems quite extraordinary that the noble Lord, Lord Melchett, should nevertheless wish to disregard that decision so that we push the change into the Bill ourselves. If the Nature Conservancy Council give this advice then of course my right honourable friend will take it, but he is obliged to consult other people as well, and that he will do.

Lord Melchett

My Lords, I would be happy to agree with what the noble Earl has just said if he would agree to take the advice of the Nature Conservancy Council about how sites of special scientific interest should be protected.

Lord Beaumont of Whitley

My Lords, I think the noble Earl the Minister is slightly mixing up two things. It is an entirely different case whether one follows, or does not follow, the advice of the Nature Conservancy Council by not going as far as they want in protecting a species, and another matter entirely when it is a question of wanting to go further than the Nature Conservancy Council wants. I certainly would not want—and I am sure that the noble Lord, Lord Melchett, would not want—at any stage to go against the advice of the Nature Conservancy Council were they advising the protection of something. That is not to say that we do not sometimes want to go further than they do. The reason for that is a fairly good one. It is that the Nature Conservancy Council, in order to preserve their reputation have, quite rightly, got to be absolutely certain that the advice that they give in regard to protection is 100 per cent. justified. There are enough critics of the NCC about to ensure that the council cannot afford at any time to go out on a limb and say, "We recommend that this or that species should be conserved", when they do not have sufficient evidence. Parliament can, and should occasionally, go further than that, because it should be able to deal with a case like this while we are producing this important Bill. This is a case where not to put these species on a protected list would not give any benefit to anyone but to put them on would obviously do some good, even though we are not quite certain exactly how much good it would do. I suggest there is no good reason not to put them on such a list and that there are some quite good reasons to put them on; therefore we should do so.

The Earl of Cranbrook

My Lords, there is a technical point. The noble Earl has drawn my attention to the fact that I have failed to check the proofs of my amendments adequately. In fact, I was seeking to invoke the provisions of Clause 9(4) only. I think my noble friend on the Front Bench realised this and he spoke to the amendment as if I had been doing what I intended to do; there was very clearly no misunderstanding. Despite the slip, your Lordships' House understood very clearly, because I made it absolutely clear and I think the noble Earl, Lord Ferrers, understood very clearly that I intended to invoke subsection (4); that is, only the control of sale. Following up the words of the noble Lord, Lord Beaumont, I stress the fact that by controlling the sale, by monitoring what is happening to these animals, not only do we anticipate a disadvantageous or even dangerous situation which renders them more vulnerable, which may occur through legislation in other countries over which we have no control; we protect them in advance of what may occur if the inflow of imported animals dries up. At the same time, by this very minor level of protection we provide the very information which the scientific authority will require in order to be able to make the assessment that it is required to make on the instructions of the noble Earl. Without adequate information on the trade in these animals, it is impossible to discover what pressure mankind is putting on the amphibians and the reptiles of this country.

The final point is that throughout this series of amendments I have been seeking to demonstrate as a fact what the Government have asserted; that is, that this Bill can invoke a degree of protection which is not total, which is not all-encompassing, which can accommodate both the needs of the species and also the needs of human kind in living with these animals. On the understanding that there is a misprint in the amendment as proposed and that in all cases they refer to Clause 9(4), I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Aylestone)

My Lords, the noble Earl has spoken to Amendments Nos. 115 to 120. Is the noble Earl pressing them?

The Earl of Cranbrook

My Lords, I am moving them all.

The Earl of Cranbrook moved Amendments Nos. 115 to 120:

Page 59, line 43, at end insert—

("Frog, Common

Rana temporaria

In respect of section 9(3) only")

line 45, at end insert—

("Lizard, Viviparous

Lacerta vivipara

In respect of section 9(3) only")

Page 60, line 4, at end insert—

("Newt, Palmate	Triturus helveticus	In respect of section 9(3) only
Newt, Smooth	Triturus vulgaris	In respect of section 9(3) only")

line 8, at end insert—

("Slow-worm

Anguis fragilis

In respect of section 9(3) only")

line 12, at end insert—

("Snake, Grass

Natrix helvetica

In respect of section 9(3) only")

line 15, at end insert—

("Toad, Common

Bufo bufo

In respect of section 9(3) only").

On Question, amendments agreed to.

Schedule 7 [Amendments of the 1963, 1970 and 1973 Acts]:

Lord Northfield moved Amendment No. 121: Page 61, line 11, leave out ("was") and insert ("had been").

The noble Lord said: My Lords, I beg to move Amendment No. 121 which is wrongly attributed to Lord Mottistone and should be in my name. The first of these amendments, No. 121, I move on the grounds of clarity in drafting and consistency in drafting. We are here dealing with an exception, as is set out on page 61 at the top of Schedule 7. With regard to clarity, I submit to the Minister that it is proper to say that the mercy killing which is being provided for here should be allowed in the case where the animal—the deer, in this case—had been so seriously injured when he arrived on the scene to do this mercy killing that his act of mercy was laudable and could be allowed. In other words, it should be clearly stated that it was antecedent that the animal had been so injured.

With regard to consistency, I would refer the noble Earl to another part of the Bill, Clause 10, which also is dealing with exceptions exactly as the schedule is dealing with exceptions. In Clause 10(2)(b), at the top of page 12 at line 5, we read: the taking of any such animal if he shows that the animal had been disabled otherwise than by his unlawful act". So we have need for clarity, and, I submit, need for consistency. This is the precise wording used in another part of the Bill in exactly similar circumstances. Therefore, I feel sure the amendment will be acceptable to the Government. I beg to move.

Earl Ferrers

My Lords, the noble Lord, Lord Northfield, has been a persistent person with regard to getting the wording of this right, and being, a helpful kind of fellow I will be happy to go along with the amendment.

On Question, amendment agreed to.

Lord Northfield moved Amendment No. 122: Page 62, line 45, leave out ("that land") and insert ("the land on which the action is taken").

The noble Lord said: My Lords, in moving this amendment, I would direct the noble Earl's attention to the possibility of confusion at the bottom of page 62. Here we are dealing with the definition of an authorised person. When one reaches sub-paragraph (d) there is a very great risk of confusion. I would read from the beginning of paragraph (6)(d)—

Earl Ferrers

My Lords, may I interrupt the noble Lord because it might save him some time. I was going to say that I would agree to accept this amendment and the following one, if he would wish to put them, without explaining the details.

Lord Northfield

My Lords, as I had not been warned of this happy change of circumstance I was about to explain, but I see I have no need to do so. I am most grateful to the noble Earl. I beg to move.

On Question, amendment agreed to.

Lord Northfield moved Amendment No. 123: Page 62, line 46, leave out ("such a person") and insert ("a person having that right").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 124: Page 63, line 39, leave out ("a site") and insert ("an area").

The noble Earl said: My Lords, this is a drafting amendment to ensure consistency. I beg to move.

Lord Melchett

My Lords, I wonder whether this gives me an opportunity to ask the noble Earl or the Government if they have reached any conclusion about the terminology of sites of special scientific interest. I imagine they are now getting keener on "areas of special scientific interest", which somebody pointed out to me today will produce ASSIs. At Report stage the noble Earl, Lord Avon, said that he would look at the point to see whether we could simplify the terminology. I wonder whether he or the Government collectively have come to any conclusion. If they have, it would be nice to hear it. I was hoping that when the Bill was reprinted it would have got rid of "sites of special scientific interest" in the side title, but it did not. I hope one of the noble Earls might be able to tell me about some happy conclusion to their deliberations.

Earl Ferrers

My Lords, it certainly gives the noble Lord, Lord Melchett, the opportunity of asking the question. It is not a particularly helpful question to ask, but I can tell him that we are still considering the point.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 125: Page 63, line 40, after ("under") insert ("section 23 of the said Act of 1949 or").

The noble Earl said: My Lords, this is a technical amendment which will doubtless give the noble Lord, Lord Melchett, an opportunity to ask some other question. However, failing that, I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 126:

Page 65, line 8, at end insert— ("(4) After subsection (3) of that section there shall be inserted the following subsection— (4) The Minister of Agriculture, Fisheries and Food and the Secretary of State shall from time to time consult with the Nature Conservancy Council as to the exercise of their functions under subsection (1)(e) above; and neither of them shall grant a licence of any description unless he has been advised by the Council as to the circumstances in which, in the Council's opinion, licences of that description should be granted."").

The noble Earl said: My Lords, this amendment seeks to achieve consistency between the Badgers Act as amended on Report and the other parts of the Bill relating to the issue of licences to kill or take protected animals. The effect will be to require that the Nature Conservancy Council be consulted before licences to take or kill badgers, to prevent serious damage to land, crops, poultry or other forms of property, are granted by my right honourable friend the Minister of Agriculture, or my right honourable friend the Secretary of State for Scotland. I beg to move.

On Question, amendment agreed to.

The Earl of Avon moved Amendment No. 127: After Schedule 12, insert the following new schedule

("APPLICATIONS FOR CERTAIN ORDERS UNDER PART III

Form of applications

1. An application shall be made in the prescribed form and shall be accompanied by—

1. (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates; and
2. (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application.

Notice of applications

2.—(1) Subject to sub-paragraph (2), the applicant shall serve a notice stating that the application has been made on every owner and occupier of any land to which the application relates.

(2) If, after reasonable inquiry has been made, the authority are satisfied that it is not practicable to ascertain the name or address of an owner or occupier of any land to which the application relates, the notice required to be served on him by sub-paragraph (1) may be served by addressing it to him by the description "owner" or "occupier" of the land (describing it) and by affixing it to some conspicuous object or objects on the land.

(3) When the requirements of this paragraph have been complied with, the applicant shall certify that fact to the authority.

(4) Every notice or certificate under this paragraph shall be in the prescribed form.

Determination by authority

3.—(1) As soon as reasonably practicable after receiving a certificate under paragraph 2(3), the authority shall—

1. (a) investigate the matters stated in the application; and
2. (b) after consulting with every local authority whose area includes the land to which the application relates, decide whether to make or not to make the orders to which the application relates.

(2) If the authority have not determined the application within twelve months of their receiving a certificate under paragraph 2(3), then, on the applicant making representations to the Secretary of State, the Secretary of State may, after consulting with the authority, direct the authority to determine the application before the expiration of such period as may be specified in the direction.

(3) As soon as practicable after determining the application, the authority shall give notice of their decision by serving a copy of it on the applicant and any person on whom notice of the application was required to be served under paragraph 2(1).

Appeal against a decision not to make an order

4.—(1) Where the authority decide not to make an order, the applicant may, at any time within 28 days after service on him of notice of the decision, serve notice of appeal against that decision on the Secretary of State and the authority.

(2) If on considering the appeal the Secretary of State considers that an order should be made, he shall give to the authority such directions as appear to him necessary for the purpose.

Interpretation

5.—(1) In this Schedule— application" means an application under section 46 (4A); local authority" means a district council, the Greater London Council, a parish or community council or the parish meeting of a parish not having a separate parish council; prescribed" means prescribed by regulations made by the Secretary of State.

(2) Regulations under this Schedule shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Earl said: My Lords, I beg to move Amendment No. 127. This amendment was spoken to with Amendment No. 91.

On Question, amendment agreed to.

Schedule 13 [Procedure in connection with certain orders under Part III]:

The Deputy Speaker (Lord Aylestone)

My Lords, the next amendment is No. 128. I think that is was spoken to with a series of amendments.

The Earl of Avon moved Amendments Nos. 128 to 157:

Page 92, line 26, at end insert—

("Coming into operation

1A. An order shall not take effect until confirmed either by the authority or the Secretary of State under paragraph 5 or by the Secretary of State under paragraph 6.").

Page 92, line 27, leave out ("draft").

Page 92, line 28, leave out from beginning to end of line 35 and insert ("On making an order, the authority shall give notice—

1. (a) describing the general effect of the order and stating that it has been made and requires confirmation;
2. (b) naming a place in the area in which the land to the order relates is situated where a copy of the order may be inspected free of charge, and copies thereof may be obtained at a reasonable charge, at all reasonable hours; and").

Page 92, line 39, leave out ("draft").

Page 92, line 43, leave out ("draft").

Page 93, line 10, leave out ("draft order; and") and insert ("order; ( ) at council offices in the locality of the land to which the order relates; and").

Page 93, leave out lines 13 to 19 and insert—

("(3) The Secretary of State may, in any particular case, direct that it shall not be necessary to comply with sub-paragraph (2)(b)(i); but if he so directs in the case of any land, then in addition to publication the notice shall be addressed to "The owners and any occupiers" of the land (describing it) and a copy or copies of the notice shall be affixed to some conspicuous object or objects on the land.

(3A) The notice required to be displayed by sub-paragraph (2)(c)(i) at the ends of so much of any way as is affected by the order shall be accompanied by a plan showing the general effect of the order so far as it relates to that way.".

Page 93, line 24, leave out ("draft").

Page 93, line 43, leave out ("a draft") and insert ("an").

Page 94, line 5, leave out ("draft").

Page 94,line 8, leave out ("a draft") and insert ("an").

Page 94, line 9, leave out ("not one but two draft") and insert ("two separate").

Page 94, line 10, leave out ("prepared") and insert ("made").

Page 94, line 16, at beginning insert ("(1)").

Page 94, line 16, leave out from ("may") to end of line 17 and insert— ("(a) confirm the order without modification; or (b) if they require any modification to be made, submit the order to the Secretary of State for confirmation by him.

(2) Where an order is submitted to the Secretary of State under sub-paragraph (1), the Secretary of State may confirm the order with or without modifications.").

line 20, leave out from ("shall") to end of line 29 and insert ("submit the order to the Secretary of State for confirmation by him.

(2) Where an order is submitted to the Secretary of State under sub-paragraph (1), the Secretary of State shall either—

1. (a) cause a local inquiry to be held; or
2. (b) afford any person by whom a representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose.

(3) On considering any representations or objections duly made and the report of the person appointed to hold the inquiry or hear representations or objections, the Secretary of State may confirm the order with or without modifications.").

Page 94, line 30, leave out ("make") and insert ("confirm")

Page 94, line 31, leave out from beginning to ("so") in line 32 and insert ("The Secretary of State shall not confirm an order with modifications")

Page 94, line 33, leave out ("draft")

Page 94, line 34, leave out ("draft")

Page 94, line 37, leave out ("draft")

Page 94, line 40, leave out ("authority") and insert ("Secretary of State")

Page 94, line 41, leave out ("them requisite of their") and insert ("him requisite of his")

Page 94, line 46, leave out from ("made") to end of line 3 on page 95 and insert— ("(b) hold a local inquiry or afford any person by whom any representation or objection has been duly made and not withdrawn an opportunity of being heard by a person appointed by the Secretary of State for the purpose; and (c) consider the report of the person appointed to hold the inquiry or to hear representations or objections.")

Page 95, line 3, at end insert—

("Local inquiries

7A. The provisions of subsections (2) to (5) of section 250 of the Local Government Act 1972 (which relate to the giving of evidence at, and defraying the cost of, local inquiries) shall apply in relation to any inquiry held under paragraph 5, 6 or 7 as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section.

Appointment of inspectors

7B.—(1) A decision under paragraph 5, 6 or 7 shall, except in such classes of case as may for the time being be prescribed or as may be specified in directions given by the Secretary of State, be made by a person appointed by Secretary of State for the purpose instead of by the Secretary of State; and a decision made by a person so appointed shall be treated as a decision of the Secretary of State.

(2) The Secretary of State may, if he thinks fit, direct that a decision which, by virtue of sub-paragraph (1) and apart from this sub-paragraph, falls to be made by a person appointed by the Secretary of State shall instead be made by the Secretary of State; and a direction under this sub-paragraph shall state the reasons for which it is given and shall be served on the person, if any, so appointed the authority and any person by whom a representation or objection has been duly made and not withdrawn.

(3) Where the Secretary of State has appointed a person to make a decision under paragraph 5, 6 or 7 the Secretary of State may, at any time before the making of the decision, appoint another person to make it instead of the person first appointed to make it.

(4) Where by virtue of sub-paragraph (2) or (3) a particular design falls to be made by the Secretary of State or any other person instead of the person first appointed to make it, anything done or in relation to the latter shall be treated as having been done by or in relation to the former.

(5) Regulations under this paragraph may provide for the giving of publicity to any directions given by the Secretary of State under this paragraph.")

Page 94, line 4, leave out from beginning to ("the") in line 5 and insert—

("Notice of final decisions on orders

8.—(1) As soon as practicable after a decision to confirm an order is made or, in the case of a decision by the Secretary of State, as soon as practicable after receiving notice of his decision ").

Page 95, leave out lines 7 to 11 and insert— ("(a) describing the general effect of the order as confirmed and stating that it has been confirmed (with or without modification) and the date on which it took effect; and (b) naming a place in the area in which the land to which the order relates is situated where a copy of the order as confirmed may be inspected free of charge, and copies thereof may be obtained at a reasonable charge, at all reasonable hours.")

Page 94, line 12, leave out ("this paragraph") and insert ("sub-paragraph (1)").

Page 94, line 20, at end insert—

("(3) As soon as practicable after a decision not to confirm an order or, in the case of a decision by the Secretary of State, as soon as practicable after receiving notice of his decision, the authority shall give notice of the decision by serving a copy of it on any persons on whom notices were required to be served under paragraph 2(2)(b) or (3).").

Page 94, line 38, at end insert—

(""council offices" means offices or buildings acquired or provided by the authority or by a local authority;").

Schedule 14 [Orders creating, extinguishing or diverting public rights of way]:

Leave out Schedule 14 and insert the following new Schedule—