HL Deb 15 October 1981 vol 424 cc451-8

9 Clause 4, page 5, line 35, leave out 'urgently'.

Lord Melchett

My Lords, I beg to move that this House doth disagree with the Commons in their Amendment No. 9 and proposes Amendment No. 9A in lieu thereof: 9A Clause 4, page 5, line 35, leave out ("urgently necessary") and insert ("necessary at the material time"). This is a somewhat narrow point but nevertheless one to which conservationists attach considerable importance. We are dealing with a clause which allows, quite rightly, farmers and other authorised persons to take action against protected birds—birds which are protected by law from being killed—when it is necessary for a number of purposes, such as the prevention of the spread of disease and in particular the protection of livestock or crops.

I certainly have no quarrel with the basic purpose of the clause. Something like this has been in previous, similar Acts of Parliament and I am anxious that this type of provision should be included in this one. However, what conservationists have been concerned about during the debates on the Bill is that when farmers and landowners—authorised persons—consider it necessary to kill birds which are otherwise protected by law it should be clear to them that they are enabled by the Bill to do that only when there was not time for them to apply for a licence—in other words when it is a question of urgency and something had to be done immediately. That is the problem with which this clause is designed to deal, as has been said by the Government and others in debates in this House and in another place.

It was because of that desire to qualify or make clearer the purpose of the clause that your Lordships' House, without any division at all, included the word "urgency" in the Bill. At that stage the Government made it quite clear that they had on drafting and legal grounds reservations about the use of the word "urgently", but nevertheless as a result of agreements on both sides of the House it was accepted that the word should go into the Bill. I thought that that was the end of the matter. We had reached in this House a very acceptable compromise on this clause, on a later clause—Clause 10—which deals with similar provisions as far as other protected animals are concerned and on Clause 15 which deals with the licensing provisions. Those were areas where there had been a good deal of concern among conservationists and some disagreement with farming interests, and we had been able to reach a compromise which was accepted by all sides of the House and which was the basis for us making progress on the Bill during the Committee and Report stages.

Therefore, I must say that I was extremely surprised to discover that in another place the Government had, on a vote on party lines, removed the word which was part of something agreed by both sides of this House, and particularly so when it was made clear by those speaking for the farming industry in another place that their view was that the clause should deal with action that is necessary if the damage is being done—in other words, necessary at the time; and it was in those circumstances that this clause should be used.

It was in an effort to be helpful and to meet that view which had been expressed in another place that I am suggesting an alternative to the words "urgently necessary"; namely, "necessary at the material time". I appreciate that the Government think that "necessary" means necessary at the material time and they have said that on numerous occasions. The Recess has enabled all of us to consult legal opinion and I have had a letter from a leading counsel who is editor of the relevant section of the fourth edition of Halsbury's Laws of England. That letter says in part: I cannot see why 'necessary' should not be qualified by some such wording as 'at the time'". I am no lawyer, and I approach this matter from the point of view of an ordinary person reading the Bill and trying to work out what it means. I think that "necessary at the material time" means something different from "necessary" which could mean necessary now, this week, next week or in a month's time. Whatever may be the Government's legal advice, it is clear that there is room for more than one opinion about this as is so often the case, I would respectfully suggest, when lawyers are consulted by different people about the same point. I would hope that, as this was part of an agreement reached by both sides of the House at a time when it was absolutely clear what the draftsmen's advice was on the legalities, but nevertheless it was not something about which your Lordships saw fit to have a Division, we could take the same line now. Moreover, as it is something to which conservationists attach importance, as it is a clause which I believe it is important for ordinary people rather than draftsmen and lawyers to be able to understand when they read it because, frankly it is a clause which does not end up in court cases (it has not in the past, and I very much doubt whether it will in the future) and as I have now come up with some wording which is more or less taken exactly from a Member of another place speaking from the farming industry's point of view—a point of view with which, as I say, I entirely sympathise—I very much hope that my new amendment will be acceptable to the Government. I beg to move.

Moved, That this House doth disagree with the Commons in their Amendment No. 9 but propose Amendment No. 9A in lieu thereof.—(Lord Melchett.)

Lord Kilbracken

My Lords, again I should like to lend my support to what my noble friend has said and to his amendment. I do not believe that he pointed out that the word "urgently" is necessary because in a case where it is not urgently necessary—under (a) (b) or (c)—it is absolutely possible to apply for a licence to take the action rather than taking it and then subsequently claiming that it had been urgently necessary. So if, for example, a large flock of collared doves descend on one's grain without warning and starts eating it in large quantities, which they are inclined to do, one could then say that it is urgently necessary to shoot them and one would be able to do so. But if there are collared doves in the area and they are beginning to be a bit of a nuisance one can then apply for a licence which will be granted in a reasonable time, and once the licence has been granted one can go ahead and shoot them. It seems to me that this exclusion should only apply—as was the case when it left your Lordships' House—when it was urgently necessary. Therefore, I wish to support my noble friend in this amendment.

Lord Somers

My Lords, while I agree wholeheartedly with the noble Lord's Motion, I should like to raise one query apropos the word "material". What is a "material" time? I cannot imagine what a spiritual time is. Would not the word "particular" perhaps suit the situation a little better?

The Lord Advocate (Lord Mackay of Clashfern)

My Lords, I assume that the noble Lord, Lord Melchett, will, in due course, answer that question. So far as I am concerned, the situation is that after this amendment was passed in your Lordships' House the matter was put to the Law Officers, including myself, and we took the view that the word "urgently" in this context was inappropriate from the legal point of view. Of course, once you put it into one place then differences in language are normally held to imply, particularly when they occur in the same Bill or Act, differences in sense, and you tend to weaken the use of the word where it appears in other places in that legislation without the same word in front of it. Apart from that, in the context of this particular clause the word "urgently" does not seem to be appropriate and I did not understand the noble Lord, in reading from his legal advice, to suggest that it was; but rather to suggest that the new phrase which he proposes is an improvement.

In approaching that question, the first matter that I should like to raise is this. Let us assume, as I think we assume for this purpose, that the word "urgently" is omitted. At what time would you think the person accused would have to prove that it was necessary to do this—to show that it was necessary? Obviously, the time at which he did the shooting, because that is the matter that is at issue. How does it help to add the phrase "at the material time"? At best, it simply emphasises that it was the time that you first thought of, but at worst it may raise a question—as it obviously has in the mind of the noble Lord, Lord Somers—as to what is the material time; and why put it in when it is so obvious what the time would be without it? It may well be in order to suggest that the material time is not the time of the act, but the time at which it was anticipated that the damage might be done.

Therefore, I should have thought that to introduce this phrase might be to go in the direction opposite from that in which the noble Lord seeks to go. So I would respectfully suggest to your Lordships that to include this phrase, which is unnecessary, cannot help in making the position clearer to the people for whom it is intended. I would respectfully suggest that the words as they are, giving effect to the amendment proposed by the other place, make it very plain for all to sec that the burden of proof, of justification, is upon the person who did the shooting, and that he has to prove that at the time he did the shooting it was necessary for one or other of the purposes set out; that means he has to show that it is only by the shooting that he could achieve prevention of the damage which is there in question—the spread of disease or whatever it is that he thought justified the shooting at the time.

Accordingly, I would submit to your Lordships that this addition now proposed—and I very much appreciate the spirit in which it is proposed and the purpose in mind for it—would, in fact, detract from the effect of this particular clause. There is also the argument that you have to look at similar provisions in the rest of the Bill where this clause would not be inserted, and you would have to ask yourself "What is the difference"? I would suggest that it would be very difficult to answer. For those reasons, I hope that your Lordships will be prepared to approve this clause in the form in which it left the other place.

Lord Kilbracken

My Lords, before the noble and learned Lord sits down, perhaps he could explain why the word "urgently" is necessary at all; in other words, why we should not simply disagree with the Commons in their amendment.

Lord Mackay of Clashfern

My Lords, I agree with the view that the word "urgently" is not necessary and, indeed, it is undesirable. Accordingly, I suggest that your Lordships should agree with the Commons in their amendment.

Lord Melchett

My Lords, I am interested in what the noble and learned Lord, Lord Mackay, has said. Perhaps I could answer the question which the noble Lord, Lord Somers, put to me. The phrase "at the material time" is taken from another Act of Parliament, which those who are drafting amendments without the benefit of legal advice often find useful, in the hope that thereby the drafting will not be open to criticism. That is why the phrase "at the material time" was used rather than the phrase "at the time"—because it appears in an animals Act of some date which I cannot exactly remember. Of course, as the noble and learned Lord said, the material time is the time when the shooting actually takes place. It is at that stage when the shooting has to be necessary to prevent damage.

I was very disappointed in the noble and learned Lord's reply for two reasons. First, although he gave us the legal argument, he did not address himself at all to what might be understood by non-legal experts reading this clause. These are the people who will actually have to read it and actually have to decide whether they can or cannot shoot something. They will not be QCs or parliamentary draftsmen, and, in the middle of a wheat field, they are unlikely to have one conveniently at hand to give them that sort of advice.

I think that those responsible for drafting Bills have some responsibility not only for legal integrity, but also to take some account of what ordinary people will make of the words they use. I would suggest to the noble and learned Lord that when someone says, "I need to do something" and he is asked, "Is it really necessary'?" and the answer is "Yes", that does not mean in ordinary language that he must do it at that moment. It might mean that he has to do it tomorrow, at the weekend, next month or some other time. However, in his mind it is necessary for him to do it, but it is necessary at some stage; it is not necessary at that moment. All of us agree—farmers and conservationists—that this clause should apply to something that it is necessary to do at that moment. I would suggest to the noble and learned Lord, Lord Mackay, that that is not what it says to ordinary people, although it may mean that to a lawyer. With great respect, it is stretching imagination beyond belief to suggest that that is what ordinary people will understand it to mean; they simply will not. It is a great pity that the noble and learned Lord did not address himself to that point, because it was on that that we really wanted to hear the Government's view.

The second matter to which the noble and learned Lord did not address himself was the point which I raised about this amendment to the Bill being part of something which was agreed by both sides of the House. Noble Lords may well remember that during some stages of this Bill we were in danger of taking an inordinately long time over it. Some may feel that we took an inordinately long time over it anyhow. However, my noble friends and I tried not to prolong our debates unnecessarily. In fact, my noble friend Lord Houghton of Sowerby withdrew a number of his amendments, especially some which were regarded by noble Lords opposite as being particularly controversial. I think it would be fair to say that, while wishing the major points to be debated, we did our utmost not to prolong the proceedings on the Bill in a way that, for example, would have forced the Government to drop it.

The agreement on this amendment, among others, was an important part of the consideration which we took into account when reaching the decision to try to help the Government get the Bill through reasonably speedily. If I may say so (and the noble and learned Lord was not involved in this), I think that it is indefensible for a Government in another place—without mentioning that, without any consultation or without bothering even to tell noble Lords on both sides of the House who were involved in discussions in this House—simply to take the word out without any more thought being given to it. It makes it very difficult for noble Lords on either side of the House to reach agreements on matters of this sort if Governments simply, cavalierly, disregard them in the way that the Government did in this case. I feel very strongly about this. I do not believe that my noble friends or I would ever have behaved in that way when we were in Government, and I think that it is monstrous for the Government to have done this to your Lordships' House in this case.

On those two grounds—first, that in this legislation we ought to be concerned about what people normally understand by the words that are used, rather than about the strictly legal approach; and, secondly, on the basis that this was something which was put into this Bill without any Division at all, because the Government accepted that it would be something which would help both sides agree on a very difficult area of the Bill—I think that your Lordships should insist on their amendment, and I hope that they will.

4.28 p.m.

On Question, Whether this House doth disagree with the Commons in their Amendment No. 9 but propose No. 9A in lieu thereof?

Their Lordships divided: Contents, 56; Not-Contents, 105.

Amherst, E. Cooper of Stockton Heath, L.
Ardwick, L.
Aylestone, L. Darling of Hillsborough, L.
Banks, L. Davies of Leek, L.
Beswick, L. Ewart-Biggs, B.
Birk, B. Foot, L.
Bishopston, L.—[Teller.] Gaitskell, B.
Blease, L. Hale, L.
Brockway, L. Hampton, L.
Bruce of Donington, L. Hanworth, V.
Cledwyn of Penrhos, L. Houghton of Sowerby, L.
Collison, L. Howie of Troon, L.
Hunt, L. Peart, L.
Jacques, L. Rathcreedan, L.
Jeger, B. Seear, B.
Jenkins of Putney, L. Sefton of Garston, L.
John-Mackie, L. Shinwell, L.
Kaldor, L. Somers, L.
Kennet, L. Soper, L.
Kilbracken, L. Stewart of Alvechurch, B.
Kilmarnock, L. Stewart of Fulham, L.
Leatherland, L. Stone, L.
Llewelyn-Davies of Hastoe, B. Strabolgi, L.
Underhill, L.—[Teller.]
Lovell-Davis, L. Wallace of Coslany, L.
Melchett, L. Wells-Pestell, L.
Molloy, L. Whaddon, L.
Oram, L. Winstanley, L.
Pargiter, L. Wootton of Abinger, B.
Abinger, L. Inchyra, L.
Adeane, L. Kemsley, V.
Alexander of Tunis, E. Lane-Fox, B.
Ampthill, L. Liverpool, E.
Arbuthnott, V. Long, V.
Avon, E. Lonsdale, E.
Beloff, L. Lyell, L.
Belstead, L. Mackay of Clashfern, L.
Bessborough, E. Mackie of Benshie, L.
Burnham, L. Macleod of Borve, B.
Burton, L. Mancroft, L.
Buxton of Alsa, L. Margadale, L.
Campbell of Croy, L. Marley, L.
Clwyd, L. Mersey, V.
Cockfield, L. Milverton, L.
Cottesloe, L. Monk Bretton, L.
Craigavon, V. Mowbray and Stourton, L.
Cranbrook, E. Moyne, L.
Cullen of Ashbourne, L. Newall, L.
Daventry, V. Noel-Buxton, L.
Davidson, V. Northchurch, B.
de Clifford, L. Nugent of Guildford, L.
De Freyne, L. Nunburnholme, L.
De La Warr, E. Onslow, E.
Denham, L.—[Teller.] Orkney, E.
Derwent, L. Orr-Ewing, L.
Digby, L. Peel, E.
Dormer, L. Platt of Writtle, B.
Drumalbyn, L. Plummer of St. Marylebone, L.
Ebbisham, L.
Eccles, V. Portland, D.
Effingham, E. Rochdale, V.
Elphinstone, L. Romney, E.
Fairfax of Cameron, 'L. Rugby, L.
Faithfull, B. Saint Brides, L.
Ferrers, E. St. Davids, V.
Ferrier, L. Sandford, L.
Fraser of Kilmorack, L. Sandys, L.—[Teller.]
Gainford, L. Skclmersdale, L.
Gibson-Watt, L. Stamp, L.
Glendevon, L. Stanley of Alderley, L.
Gormanston, V. Strathclyde, L.
Grafton, D. Strathcona and Mount Royal, L.
Gridley, L.
Hankey, L. Swansea, L.
Harvington, L. Swinfen, L.
Hatherlon, L. Swinton, E.
Hawke, L. Terrington, L.
Henley, L. Teviot, L.
Hives, L. Thorneycroft, L.
Holderness, L. Trumpington, B.
Hunt of Fawley, L. Vaux of Harrowden, L.
Hylton-Foster, B. Vivian, L.
Ilchester, E.

Resolved in the negative, and Motion disagreed to accordingly.

4.36 p.m.

Lord Mackay of Clashfern

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 9.

Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)

On Question, Motion agreed to.