HL Deb 22 January 1991 vol 525 cc129-93

5.51 p.m.

Read a third time.

Clause 1 [Scottish Natural Heritage]:

Lord Carmichael of Kelvingrove moved Amendment No. 1: Page 1, line 12, at end insert ("and (c) to protect, by preventing the dumping of radioactive waste under the surface of the land").

The noble Lord said: My Lords, the Scottish Natural Heritage will be the first agency in Scotland to have wide-ranging responsibilities and powers in relation to the environment. It therefore seems to us important that its responsibilities include the disposal of radioactive waste because of the potentially harmful effects on the environment.

Clause 1(1) of the Bill requires the Scottish Natural Heritage to have regard to the desirability of securing that anything done, whether by SNH or any other person, in relation to the natural heritage of Scotland is undertaken in a manner which is sustainable".

We had this argument before, but there is no harm in going over it again. The deep disposal of radioactive waste is a matter for which the SNH should have responsibility, because compared with above ground on-site storage it does not allow for effective monitoring and retrieval, and therefore cannot be regarded as "sustainable". The Minister will be aware of the arguments—I think he heard most of them before—and I only hope that he will have looked at them seriously and perhaps reconsidered the point of view he had last time. I beg to move.

Lord Campbell of Croy

My Lords, I spoke on this subject when a similar amendment was introduced at Committee stage. I feel surprised that it should appear again today at Third Reading. I thought it had been completely disposed of at that stage. It requires me to repeat—and I shall say it as quickly as I can—what I said before. I shall summarise it and remind your Lordships that this amendment simply says "radioactive waste". The effect would be that the new body, Scottish Natural Heritage, would have to prevent the disposing of any kind of radioactive waste under the surface of the land, as I see it, anywhere in Scotland—the whole of Scotland.

I pointed out that a large proportion of low-level radioactive waste—I have been informed by the scientists about 30 per cent. of it—is produced from the gloves, equipment, and other materials from radiotherapy in hospitals and other uses of radium in hospitals in the treating of cancer and other serious diseases, and also in research in universities in Scotland. This is all radioactive waste. There is nothing in this amendment which says high-level radioactive waste. It would include the low-level radioactive waste of the kind that I have described.

The effect of this amendment would be that those items from hospitals in Aberdeen, Inverness, or wherever it may be, and the universities would have to be carted to England or Wales. Alternatively, it would have to be left, in the terms of this amendment, above the ground. What is the point of leaving low-level radioactive waste above the ground in Scotland when it would have been safer—although it is not a dangerous item—if it were below the ground?

I pointed that out last time and the noble Lord, Lord Carmichael, quite quickly withdrew the amendment. I shall go on now and add this to what I said before: I deplore unnecessarily frightening people in Scotland about anything connected with radioactivity. You then court popularity as a populist politician by being against it all and by frightening people quite unnecessarily in the first place. This is what the SNP has done in Scotland, and it is the sort of thing it would do; but I feel dismayed and saddened by the Front Bench of the Labour Party joining in and putting this forward simply because they know that some people have been frightened by the SNP propaganda about any kind of radioactivity. This from the party which, in the late 1960s, when I was in another place, were keen on the "white heat of technology", and here we are dealing with technology that is beneficial and remedial.

I hope that this will not be pursued. I must describe this as puerile, unscientific and uneducated. It is a silly amendment. I did not say that on the last occasion, as I was much too polite but now it has come up again. I think I referred to it all very politely, but on this occasion I will not do so. It is a silly amendment and I cannot possibly advise the House to accept it.

Lord Renton

My Lords, I agree with what my noble friend has said. But I have a further reason for suggesting that the amendment should not be made. Subsection (1) of this clause endeavours to explain the general aims and purposes of the SNH and does so in clear terms. The amendment adds a particular purpose when many other particular purposes could have been included. Whatever the merits of finding ways of preventing the dumping of radioactive waste—and we have had other legislation that deals with this—this is not the place to introduce this matter. It would spoil the generality of this well drafted subsection.

The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde)

My Lords, during the Committee stage I had hoped to satisfy the noble Lords apposite in whose name the amendment stands that it would be quite inappropriate to commit Scottish Natural Heritage to adopting a particular policy in relation to the disposal of radioactive waste in advance of considering any actual proposals. I appreciate the anxiety of noble Lords and others on this matter; but like my noble friend Lord Campbell of Croy, I think that the noble Lord, Lord Carmichael, has got it wrong.

I very much regret with my noble friend that the arguments at Committee stage did not succeed in convincing the noble Lord, Lord Carmichael. It may therefore be helpful if I respond in a more fundamental way to some of the considerations that evidently underly the amendment. The first point relates to the use of the word "dumping". This is most emphatically not a recognised term in the nuclear or indeed the waste disposal industry. The more extreme environmentalists—and I do not think that should include the noble Lord, Lord Carmichael—use the word "dumping" to capture the headlines when they mean disposal.

In the case of radioactive waste, the Government have a policy of achieving safe disposal in an engineered repository deep under the ground, such as already exist in Sweden and Germany. Before such a repository can be built, the normal planning procedures must be observed. Accordingly, there can be no question of dumping anything anywhere in the normal sense of the word.

A further misconception which appears to have influenced the thinking behind the amendment is the view that Scotland is being used as a waste dump. I find this suggestion quite surprising since most of the radioactive waste which is produced in Scotland is, in fact, transported into England for disposal or reprocessing. It is perhaps a commentary on the absurd extremes to which current scaremongering now extends that some people believe such a blatant untruth.

I hope that in view of what I and my noble friends have said, the noble Lord, Lord Carmichael, will agree that his amendments will not help Scottish Natural Heritage, or indeed the natural heritage of Scotland itself.

6 p.m.

Lord Carmichael of Kelvingrove

My Lords, I make no apology for raising this subject once again. I take note of the words used by the noble Lord, Lord Campbell of Croy. I also took note of the words used by the noble Lord, Lord Renton, when he said the subsection was not a suitable place for this provision. We always trust the great knowledge of the noble Lord in these matters.

The noble Lord, Lord Campbell of Croy, should be aware that it is not the Scottish nationalists who have raised the matter of radioactive waste. When bores were being drilled in the north and in the south of Scotland, people became very afraid. We are not talking about hospital waste in this instance. Most people are aware that we are talking about fairly active waste with a long half-life.

Lord Campbell of Croy

My Lords, I thank the noble Lord for giving way. However, I should point out that his amendment covers all radioactive waste. His amendment would cover the items that I have described. Since the Committee stage of the Bill I attended a meeting of the Foundation of Science and Technology which was chaired by the noble Lord, Lord Lloyd of Kilgerran. Some noble Lords who are scientists were present at the meeting, as were other scientists from all over the country. I asked one of the speakers to give me the percentage of low level waste which is in question. I was given a figure of about 30 per cent.

Lord Carmichael of Kelvingrove

My Lords, I thank the noble Lord for his second contribution to this debate. However, I believe we were all roughly aware of the amount of waste involved. This amendment may be defective but I believe it will help those in another place to draft a more accurate amendment. I stress that I make no apologies for tabling this amendment. We shall continue to question what is happening to waste in Scotland. The Minister suggested that most of our waste was going to England. We accept that. However, the Minister also knows that there is a great deal of anxiety in Scotland as people feel that at some point the waste will no longer go to England but will be taken up to the north of Scotland to Dounreay.

As I have said, this amendment will certainly appear in another place and it may be improved as a result of the consideration that has been given to it in your Lordships' House. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 2: Page 1, line 16, leave out ("is sustainable") and insert ("secures the sustainability of that national heritage and the environment").

The noble Lord said: My Lords, we have already discussed this matter. We have tried to introduce a slightly different form of words this time as we really wish to obtain a statutory definition of the word "sustainable". The Minister was unable to provide us with such a definition on the previous occasion when we discussed the matter. This is an important matter. It seems wise to secure a wider brief if only to ascertain that Scottish Natural Heritage will be able to advise against undertakings in Scotland which may adversely affect the environment even of areas furth of Scotland. I feel that some attempt should be made to impress upon Scottish Natural Heritage that any development should be sustainable as regards Scotland's environment and heritage. I beg to move.

Lord Mackie of Benshie

My Lords, I do not wish to be hard on the noble Lord, Lord Carmichael, as he has already suffered today. However, I wish to ask him what the difference is between "sustainable" and "sustainability". I do not believe that the word "sustainability" makes the position any clearer. It would be far better to leave the word "sustainable" in the Bill.

Lord Renton

My Lords, this amendment would make the subsection longer without adding anything to its meaning or effect.

Baroness Nicol

My Lords, in supporting my noble friend on this amendment I should, for the benefit of the House, say that we have at last apparently agreed on a definition of the word "sustainable" in this context. Last Wednesday in a debate in this House I raised the question of sustainable development as defined in the Brundtland Report. I was assured by the Government spokesman on that occasion that the Government accept the concept expressed in that report. I forget the exact words used, but the definition stated that we should so use the earth's resources as to ensure that we could meet our needs without depriving our successors of being able to meet their needs. Therefore we have a definition. I apologise for my slightly defective wording. On that occasion we obtained a definition of "sustainability" from the Government. I hope that that definition can be stated wherever the word is used in future.

Lord Strathclyde

My Lords, I admire the perseverance which the noble Lord, Lord Carmichael, has shown on the subject of sustainability. The concept is not only one new to legislation, which therefore deserves to be tested in the way the noble Lord has sought to do, but it is also fundamental to the work of Scottish Natural Heritage and all other statutory bodies dealing with the natural heritage.

I do not consider, however, that this latest attempt to clarify this provision adds anything to the Bill. The phrase "secures the sustainability" simply echoes the word "securing" earlier in the clause and may therefore be confusing to the reader. This will be clear when I read the clause as it would be if the amendment were accepted. The duty would become, Scottish Natural Heritage shall have regard to the desirability of securing that anything done, whether by SNH or any other person, in relation to the natural heritage of Scotland is undertaken in a manner which secures the sustainability of that national heritage and the environment". The duty relating to sustainability, is, as I have said, one new to legislation. We therefore decided that the duty needed to be expressed as precisely as possible in an attempt to make it clear cut. That I believe we have achieved by focusing the duty on "anything" that is done to the natural heritage. SNH therefore has something concrete and tangible to look at and can consider the effect of such a provision on the natural heritage. The amendment, however, removes the precision we have aimed at. It does so by shifting the focus of SNH's attention away from what might be done to affect the natural heritage directly onto the natural heritage itself.

The Government's intention is that SNH will seek to persuade and influence all those whose work and activity in one way or another affects the natural heritage to undertake their activities in a sustainable manner. Certainly if anything done to the natural heritage is not done in a sustainable manner, then the natural heritage is not likely to be sustained. I submit therefore that the noble Lord's amendment is less precise in giving a clear statutory duty to SNH than is the Bill as presently drafted, and therefore makes it more difficult for SNH to know what is necessary to discharge that duty.

I appreciate that this is a difficult point, and I have been drawing some fine distinctions. The subject is too important not to be dealt with as carefully as possible. I have given very particular thought to the amendment, and am resisting it because I am convinced it does not improve the Bill. Indeed, as I have tried to explain, it could go further and have a negative effect by making the provision less clear and less easy to apply.

As for the comments of the noble Baroness, Lady Nicol, at Second Reading and in Committee, I spelt out the Government's view of sustainability. That situation has not changed. I do not know to what the noble Baroness was referring in last Wednesday's debate. I have not had an opportunity to read it, but I suspect that the government spokesman, the Minister for the Department of the Environment, would undoubtedly have agreed with my previous definitions of sustainability which are as wide and far-ranging as possible.

Lord Carmichael of Kelvingrove

My Lords, I am most grateful for the care which the Minister has taken over this amendment and also for clarification of the Government's attitude to sustainability and the belief that it is better than the amendment that was down in my name, which is possibly true.

I am grateful to my noble friend Lady Nicol for her contribution. I am sure that, if the Minister reads the report, as I am sure he will, he will appreciate that this is a very important subject. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 3: Page 1, line 23, at end, insert: (""Amenity" means all those aspects of Scotland's natural heritage which engender its enjoyment including its accessibility, the appearance of managed, designed and natural landscapes, and the design and siting of facilities for recreation.").

The noble Lord said: My Lords, I think it would be for the convenience of the House if Amendments Nos. 3 and 4 were taken together.

It is unclear whether natural heritage as defined in Clause 1(3) of the Bill includes those aspects of the landscape which have been man-influenced. Furthermore, it is not clear whether SNH will be able to advise the Government on the design and location of artefacts in the countryside such as buildings, roads, signs and so on, and on its work to further the undertaking and enjoyment of the natural heritage including the interpretation of rural ways of life.

By helping to explain the meaning of the word "amenity", the amendment will ensure that such work can continue from other bodies into Scottish Natural Heritage. I am sure the Minister will be aware of what we are trying to suggest here. For example, one may go along a very beautiful country road and come to a once attractive small town where that attractiveness has been obliterated by signs of tea shops, curio shops, and so on. I want them to be there but some consideration could be given to the type of placards displayed. The Minister may be aware that Westminster Council has been taking steps because of the proliferation of estate agents' boards in the area. That type of thing is not "big brother" but just slight advice to try to improve matters. That is the purpose of Amendment No. 3.

Amendment No. 4 seeks to ensure that Scottish Natural Heritage is empowered to provide advice to the Secretary of State and other Ministers over the full range of its functions and expertise. Clause 1 of the Bill defines the aim of the Scottish Natural Heritage. It is, to secure the conservation and enhancement of; and to foster understanding and facilitate the enjoyment of, the natural heritage of Scotland".

As drafted, Clause 2(1) gives Scottish Natural Heritage the functions of advising Ministers on policies affecting the natural heritage. As the aims of SNH extend to facilitating enjoyment of this heritage, so also should its advisory functions. The amendment is meant to ensure that that is so. I beg to move.

6.15 p.m.

Lord Taylor of Gryfe

My Lords, I have a certain amount of sympathy with the amendment. Not only does it highlight the importance of the environmental functions of the new body, it also places some emphasis on the enjoyment of the countryside and the facilities for recreation. I sometimes feel that these environmental debates are conducted as though protection of the environment involved establishing wilderness areas. This amendment states what amenity is about.

For example, I notice that south of the Border—now that we are free of the shackles of Peterborough we can perhaps look at their antics and activities—it has been established that in the south of England there is a great shortage of golf courses. That appeals to farmers who are not enjoying the best of times. However, some of the nature conservancy and so-called environmental protection bodies send letters to The Times saying that we must not have more golf courses and that somehow or other they affect the amenity of the area. I know of nothing more beautiful than a golf course, living as I do in St. Andrews. I am quite sure that the noble Lord, Lord Stodart of Leaston, whose land is near Muirfield concurs with that view. It is important to emphasise in the Bill that golf courses and other forms of recreation are not an offence to amenity but can in fact enhance the environment. Consequently, I support the amendment.

Lord Campbell of Alloway

My Lords, there is objection to the amendment because it is desperately circuitous. Clause 1(3) states that "the natural heritage of Scotland" includes amenity. But the amendment begins "'Amenity' means". It is a limited definition which restricts the Oxford English Dictionary meaning of "amenity" to precisely what is contained in the amendment. Surely that cannot be the intention when one considers the interesting observation of the noble Lord, Lord Taylor of Gryfe. With respect, the wording would be desperately difficult to operate in practice.

Lord Strathclyde

My Lords, I am afraid that these amendments seem to be treading over much of the ground which we covered both in Committee and on Report. We have debated the issue of the role of SNH with regard to access to and enjoyment of our natural heritage and I have made it clear that the Government recognise the importance of these issues and are committed to SNH's role in pursuing them.

However, perhaps I may take the opportunity to stress once again that with this Bill we are moving away from the language of the Countryside (Scotland) Act 1967 which sets out the basis of such concepts at some length. In this Bill, we are seeking to set up a statutory framework within which SNH can operate.

It is not proper to single out, on the face of the Bill, any aspect of the work of SNH. It is quite clear what SNH's role and remit will be, and I do not see that these amendments go any way towards improving upon that. I agree with my noble friend Lord Campbell of Alloway that to define amenity is, in itself, unnecessary. Your Lordships will appreciate that it is neither possible nor even desirable to define every concept within the Bill. In this case in particular, I can see absolutely no need for a definition of amenity. What is meant by it is quite clear to all concerned, and has been throughout its existence in legislation since 1967. In any event, to include a definition which is apparently so precise would seem to exclude other things which might otherwise properly be construed as being part of amenity. We intend that the Bill should operate for many years to come in a positive and efficient way; so we would not wish to impose a tight definition on every concept at this stage.

Perhaps I may reply briefly to the noble Lord, Lord Taylor of Gryfe. Facilities are already covered by Clause 1(1) (b) of the Bill which gives Scottish Natural Heritage an aim of facilitating enjoyment of the natural heritage. I suspect that the noble Lord would agree with me that that should and would include golf courses.

I trust that in the light of what I have said, the noble Lord, Lord Carmichael of Kelvingrove, will see fit to withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, I thank the Minister for his reply, which I found very full and interesting. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.] Clause 3 [Duty to take account of certain matters]:

Lord Pearson of Rannoch moved Amendment No. 5: Page 2, line 39, leave out ("and").

The noble Lord said: My Lords, Amendment No. 5 is a paving amendment for Amendment No. 6. I hope that it is convenient if I speak to Amendment No. 8 at the same time.

The amendments seek to add to the interests which SNH should consider when exercising its functions. To the needs of agriculture, commercial fisheries and forestry, they seek to add other traditional land uses and sources of rural employment; and to the interests of local communities they seek to add those of landholders.

I hope that it will be helpful if I give an example of one important interest which would thus be included in SNH's affections which without the amendments looks as though it may instead attract SNH's hostility—and very powerful that hostility would be. The interest to which I refer, which is literally vital to the Scottish highland economy and heritage, is that of our wild red deer and the deer management industry which depend on it.

As your Lordships may be aware, at Report I probed SNH's attitude to our deer and their management and was a little surprised when the Minister said that SNH would approach them in exactly the same way as it would other users of the countryside.

That in itself cannot be right. After all, deer management is a wider industry than the sporting interest in deer, which is itself very important. Deer management includes the whole welfare of our largest land animal, one which must be judged by any standards to be among the most beautiful. Deer management depends on the ownership or tenancy of land in a way that many other land uses do not.

The Red Deer Commission estimates that some 600 full-time jobs depend on the wild red deer in Scotland, mostly in the remotest and most delicate areas of the highland natural heritage. For the cost associated with each one of those jobs I estimate that at least £20,000 per annum—or a total of some £12 million per annum—is being invested by the estates in the highland economy. Other economic spin-offs are considerably greater. Wild deer attract no subsidy from the taxpayer. They are also highly sustainable in the best sense of that expression as intended by the Bill.

Be that as it may, there are clear signs that without the protection offered by the amendments SNH may be hostile to our wild red deer. Both the Countryside Commission and the Nature Conservancy Council, which are being merged to form SNH, are sending out some very worrying signals in this regard. For example, the Countryside Commission for Scotland cites over-grazing by too many red deer as one of its main reasons for wishing to create four large national parks, to be managed by SNH and other bureaucracies at a cost to the taxpayer of some £8 million per annum. It is odd that the Countryside Commission lays no blame on the two million or so sheep which share the 300,000 red deer's range and food supply.

Since Report stage I have also acquired correspondence from the Nature Conservancy Council which shows that the Nature Conservancy Council agrees with the Countryside Commission that red deer are largely responsible for the alleged destruction of much of the flora of the highland heritage. The Nature Conservancy for Scotland would like to reduce the deer population in many areas to a level where natural regeneration of native trees and shrubs might occur without costly fencing, which the Nature Conservancy Council does not favour. That means shooting at least 90 per cent. of the current stock and continuing an intensive shooting programme indefinitely. The Nature Conservancy Council proposes to start that programme as soon as possible in an area which stretches from the headwaters of the River Dee to the A.9. That area coincides nicely with the Countryside Commission's proposed new national park for the Cairngorms.

Yet the widely respected scientist most closely associated with the Nature Conservancy Council's own work on deer on the island of Rhum, Dr. Timothy Clutton-Brock, casts grave doubts on the Nature Conservancy Council's position on the matter. In a letter to me last week he said: We know distressingly little about the effects of deer on upland vegetation … In addition to investigating how different deer densities affect plant and animal communities we need to know how different combinations of deer, sheep and cattle affect their environment … We currently know little about the causes of long-term changes in the ecology of the Highlands, and many factors other than changes in deer density are probably involved".

So there are substantial differences of opinion among the scientists on this matter. I am happy to make copies of the relevant correspondence available in your Lordships' Library.

Furthermore, I have to say that the Nature Conservancy Council's own record on deer management can be somewhat distressing. Let us look at the example of Creag Meagaidh, a hill in Inverness-shire which the Nature Conservancy Council bought in 1986. It then decided that it wanted the birch and rowan trees to regenerate naturally, and that meant getting rid of the deer. A fence was accordingly built along the road at the bottom of the hill and up two sides of the hill, but the fence was not completed along the top of the hill.

Until that happened, the normal estate cull from that ground was about 50 deer per annum and that maintained a healthy herd. However, it did not permit the natural regeneration of birch and rowan—not exactly our rarest trees. In the past three years the Nature Conservancy Council has disposed of 832 deer, and the annual count of deer present on that ground has fallen from 600 deer in 1986 to 148 last year.

The project has had a very bad effect on neighbouring estates because the deer are drawn in over the top of the hill to their destruction in the trap below. I spoke to an eye-witness yesterday who on one occasion saw three helicopters taking out the carcases because normal extraction was not possible given the number of deer that had just been shot.

That brings me to a perplexing procedural matter. My noble friend the Minister has said that the Government intend to bring forward an amendment when the Bill reaches another place to allow the Red Deer Commission to shoot deer to protect the natural heritage on the advice of SNH. The Red Deer Commission is very anxious not to have any obligation thrust upon it and hopes to maintain its statutory independence. However, as things stand today we do not know what the amendment will say so we cannot discuss it further.

That is all the more perplexing because my honourable friend the Minister in another place said at a major conference on deer in Inverness on 22nd October that the amendment would be introduced only if reaction from all concerned was favourable following widespread consultation. No such consultation has taken place and so all those with the welfare of our wild deer at heart can perhaps be forgiven for being suspicious and hostile at the moment to that eventual amendment.

Whatever that amendment may say if and when it is tabled, the situation is still very worrying because Clause 5 of the Bill as presently drafted would allow SNH to carry out massive deer culls even without the participation of the Red Deer Commission. Clause 5(3), if one looks at it closely, shows that SNH has all the powers it needs in that regard. I believe that we shall return to the matter under Amendment No. 11.

I hope that I have said enough to show that the amendments are necessary, at least to protect not only our magnificent wild deer but also the unsubsidised industry, vital to the highland economy, which depends on them.

I should also draw your Lordships' attention to paragraph 4 of Schedule 1. If the interests covered by the amendments are not included in the Bill at Clause 3 they may not be represented on the board of SNH either. That would surely not be appropriate.

Finally, I come back to the Minister's suggestion at Report that if the amendments are accepted, all sorts of other interests might expect to be included under Clause 3 of the Bill. I wonder whether that is so. I should have thought that all those other interests, most of them entirely honourable and appropriate to the purposes of the Bill, are already included in Clause 1 or under the rest of Clause 3. However, it is simply not accurate to say that our traditional land uses and sources of rural employment are included within the term "social and economic development". Development is surely something different. There is a very important place for it of course, but it is different.

The amendments would make certain that, among other things, one of the most magnificent examples of our natural fauna is well treated in future, and that all our traditional land uses and the unsubsidised employment they bring will not be wrongly penalised by the future SNH. I beg to move.

6.30 p.m.

Lord Glenarthur

My Lords, I very strongly support the amendments which have been so admirably moved by my noble friend Lord Pearson. Almost exactly nine years ago we embarked upon a discussion of the Deer (Amendment) (Scotland) Act. That Bill is etched upon my mind, not just because I was the person who was persuaded to pilot it through your Lordships' House, but because of the very great experience and knowledge of many of your Lordships which was brought to bear on the subject and the very thorough debates which we had upon the Bill in all its stages.

Although the amendments of my noble friend Lord Pearson refer to Clause 3, as he indicated, I do not think that we can consider that clause in isolation. I have real concerns, as he has, about the apparently sweeping powers of Clause 5 and the corresponding narrowness of the duties placed upon SNH in Clause 3. That is the theme that I should like to develop.

I am the first to agree that some control of deer to prevent excessive damage to the natural heritage may be necessary. However, there should certainly be a full examination of all the implications—the kinds of things to which my noble friend has referred—and how they should be addressed in consultation with, and to achieve agreement between, all those who are concerned and know about these matters.

My noble friend referred to a conference that took place on 22nd October on the theme deer, mountains and man which was addressed by my honourable friend the Parliamentary Under-Secretary of State. During that conference full consultation on the subjects relevant to this Bill was suggested. I wonder whether my noble friend Lord Strathclyde can say who was consulted and what has been the fruit of that consultation. Is he able to say whether any body has been particularly slow in coming forward with views?

We shall deal with other aspects of Clause 5 later, but in so far as the clause affects deer, I think that two points are worth making. The first is that the word "scheme" appears in clause 5(1). There may well be a correlation between that term in the Bill and deer control schemes which are featured in Section 7 of the Deer (Scotland) Act.

Again, as my noble friend describes, Clause 5(3) states: SNH may undertake, promote or coordinate, either by itself or in conjunction with any other authority or person, measures to implement the proposals mentioned in subsection (1) …". That seems to me to be a most sweeping power when it comes to the control of deer.

To add to that, my noble friend Lord Strathclyde has forecast an amendment being brought forward in another place to amend the Deer (Scotland) Act.

I am bound to say that I am more than a little surprised that it has not been possible to bring forward this amendment in your Lordships' House where so much expertise resides. Perhaps my noble friend will be able to say why and tell us which sections of the Deer (Scotland) Act he proposes to amend.

I hope my noble friend will realise that I believe there is an intention to amend Section 7 of the Deer (Scotland) Act to give powers to impose deer control schemes to protect the natural heritage. The powers given to the Red Deer Commission to arrange for control under varying circumstances are very carefully graded. First, in Section 6 of the Deer (Scotland) Act the Red Deer Commission: shall authorise in writing … any person who in their opinion is competent to do so to follow and kill deer under certain circumstances. That power is upgraded in Section 6A which introduces a further power of the Commission to deal with marauding deer. The final part deals with the matter of control schemes which can be imposed; I have to say to your Lordships that to the best of my knowledge in the 30 years or more since the passing of the Act they have never been invoked. I think it would be much more sensible to bring forward suitable amendments to Sections 6, 6A and 7 so that the graded response allowed for other purposes could be followed for the protection of the natural habitat, or whatever words might be used. To go straight to Section 7 is far to heavy-handed, and I am sure that such an idea would, very rightly, be strongly resisted.

The fact that the SNH may require some special power to prevent excessive damage by deer to the natural habitat does not mean that they should have a sole or overriding interest, or that they should be the only source of advice to the Red Deer Commission. But that is what is currently proposed, and I hope that my noble friend can bring us up to date. While we are in this uncertain state over this issue we really do need other safeguards, and that is why placing additional duties on SNH, as this amendment proposes, goes some way to providing those safeguards.

I hope that my noble friend will recognise that there are very real and genuine concerns over this matter. I am sorry to say that I do not believe that the process of consultation has been carried out in a way which is likely to take account of all the interests of deer management.

I hope that my noble friend will be able to provide considerable reassurance on a matter which very seriously exercises many of your Lordships.

Lord Charteris of Amisfield

My Lords, as Chairman of the National Heritage Memorial Fund, I would like to say that some time ago we provided about £750,000 of public money for the Royal Society for the Protection of Birds in order that they might acquire, first, Loch Garten and, secondly, a large slice of Abernethy Forest. The main purpose of the acquisition as far as Loch Garten was concerned was to preserve the osprey, and one of the other purposes was the regeneration of the natural forest.

I do not think anybody ever contemplated that it would be possible to allow regeneration of the forest without fencing. When we were considering this matter with the RSPB I do not think we had any idea that, in order to ensure regeneration, we would have to get rid of 90 per cent. of the red deer and, I suppose, the same proportion of sheep. We had always assumed that this would have to be done by fencing. It seems clear to me that the alternative to fencing is wholesale slaughter, and I very much hope that everybody will get that idea out of their minds. I believe it is absolutely essential that the SNH should be under an obligation to take into account the interests of the rural industries, of which the noble Lord, Lord Pearson, has spoken so eloquently.

I should also like to speak about the inclusion of land holders in this clause. The National Heritage Memorial Fund has always taken the view that our heritage is best preserved by those who own it because they know and love it. Whatever views one may have on that, it is quite clear that land holders—by that I mean landowners and tenants—are an essential element in the equation. The fact that they are not mentioned in the Bill as it stands arouses in my mind and that of many others fears that the Government may have intentions against them. I hope therefore that this very reasonable amendment will be accepted. If so, I know that it will set many minds at rest. I very much support it.

Lord Mackie of Benshie

My Lords, I rise to support the amendment to which I have put my name. Clause 3 provides that: It shall be the duty of SNH in exercising its functions to take such account as may be appropriate in the circumstances of— (b) the needs of agriculture, fisheries and forestry". The amendment, which is eminently reasonable, would include: other traditional land uses and sources of rural employment". The provision of employment by sporting activities in the Highlands in particular is of immense importance. All the hotels and remote places, for example, depend enormously on fishing. I know that the term used in the clause is "fisheries" but that can mean many things. Rod fishing is of infinitely greater importance to many people in the Highlands than is either net fishing or rearing of salmon in fisheries.

The case for red deer was made with great eloquence and at considerable length by the noble Lord, Lord Pearson. He gave an example of a public body doing something foolish. I can cite many more examples of land holders and landowners doing something even more foolish. One has only to look around.

It is necessary for the public to take part in the preservation of our heritage; but we should consult the proper interests in the Highlands. Highlands landowners who are not traditionally the friends of the Liberal Party are under attack. In many cases they are very nice people and sometimes they are Scottish. They play an enormously important role. It would be only reasonable for the Government to mention those very important interests in the clause so that Scottish Natural Heritage can take note of them. This is a very reasonable amendment and I hope that those interests will be considered.

I take up a point raised by the noble Lord, Lord Glenarthur, who said that it was curious that the Government should not introduce an amendment in this House. I can only suggest that it is a matter of a cowardly approach in that they want to get the Bill through the Commons. With their majority there, they can defend it against the much greater expertise in this House. I can assure them that the matter will be looked at carefully.

Before I sit down, I should like to return to the topic of deer. We must consider what part they play. When the Deer Commission was set up its first chairman was a friend of mine, Mr. Michael Crichton-Stuart. It had a clear remit to ensure that the deer population was kept within bounds and properly managed and to co-operate with the land holders or landlords in that respect. The fact is that there are far too many deer and in many places the population has doubled. There is no doubt that there is a problem. There is also no doubt that the Red Deer Commission in its present form has not managed to cope with it. I accept many of the arguments, but we ought to look closely at the matter.

The amendment is a good and sound one and the Government would be very foolish not to accept it.

6.45 p.m.

Viscount Massereene and Ferrard

My Lords, perhaps I may intervene at this point. I was brought up in a deer forest and I have written about red deer. Throughout my life I have had great experience of deer and the Highlands generally. The noble Lord who has just sat down spoke of how some people could be very foolish. I agree. I have found that the Civil Service can be very foolish.

Let me give an instance. Two or three months ago something remarkable happened: a new nature conservancy man had been appointed and, without approaching me or any of my staff, decided to put an enormous circle around my deer sanctuary, which consisted of some 12,000 acres within a forest of about 30,000 acres called Ben More. The area used to be famous for its stags, which were heavier than in Scotland, and it was beautifully managed. We went in for breeding. We were known for the big heads and the mature stags. There were also sheep.

As noble Lords probably know, sheep came to the Highlands when the land was cleared. Before them there were cattle on the hills. Cattle are far better for the hills than sheep which ruin the vegetation. At the end of the 19th century a great many sheep were taken off the Highlands. It had to do with the development of Australia. I remember lambs being sold for two or three shillings a head. When the sheep went, the deer increased greatly.

Michael Crichton-Stuart was also a friend of mine. He was a charming person but, with due respect to him, he did not know a great deal about deer. It is strange to note that the first two chairmen appointed to the Highlands and Islands Development Board were both professors of urban planning. How can anyone be so foolish as to appoint professors of urban planning to the Highlands and Islands Development Board? It is hard to imagine but it happened.

I must defend the deer. They are a most beautiful animal. They are also a source of great employment. Deer which are properly managed bring in a great income to estates. There appears to be some plan or plot in BBC television to picture deer as eating all the trees in the Highlands and destroying the scenery. That is nonsense. There are plenty of trees on my ground. It is the sheep which are the close grazers. They destroy the natural expanse of trees and cause harm. I do not want to go on but—

Noble Lords


Viscount Massereene and Ferrard

—when the Red Deer Commission was formed there were many more deer in the Highlands because there was more grazing land. Their numbers were decreased deliberately as a result of the large amount of planting. We must not go too far. I know some people who are supposed to be experts but they have not been brought up in the country, with wildlife. They should take the advice of some landowners because they do not have practical experience.

If we allow the Civil Service to control the wildlife of the Highlands soon we shall have no wildlife. For example, I have rare birds on my land but I am losing those because of the increase in the number of people walking over the hills. That is in spite of the fact that I had made paths and built roads and bridges at my own expense in order to help the hikers. As I said previously, a new conservation man was appointed and he turned a large part of my ground into an SSSI without asking me. I already had four SSSIs—

Noble Lords

Order, order!

Baroness Carnegy of Lour

My Lords, it is clear that most noble Lords believe that the amendment is about deer. It is an important subject and I am sure that Members in another place will pay a great deal of attention to your Lordships' comments. Members of this House have great expertise on the subject. However, the amendment does not mention deer. I wish to follow my noble neighbour, Lord Mackie of Benshie, along the lines of the more general sense of the amendment.

Scottish Natural Heritage should take account of the effect that its decisions may have on job opportunities in an area and on the rural enterprise and land management that creates jobs. Careful consideration must be given to the remoter parts of Scotland where people and earning opportunities for them are few.

I do not know whether the amendment is worded in the best way. I have never before heard the term "landholder" used in legislation but that may be due to my ignorance. If it means occupier or owner the Bill should state that because it would be clearer. Is the phrase "traditional land uses", picturesque though it is, sufficiently specific or flexible at a time of rapid change in the countryside? Perhaps my noble friend on the Front Bench will comment upon that. I hope that my noble friend Lord Pearson will tell the House whether he believes that wording to be essential to the amendment.

I wonder whether there are activities that are vital to people living and working in the countryside which do not have consideration under the Bill as it stands. I was unable to be present during previous stages of the Bill but after reading the discussions I wonder whether all the necessary issues are not already covered. I appreciate that the specific subject of deer will be sorted out in another place.

Must Scottish Natural Heritage take account, for example, of small businesses which smoke salmon and trout and the land that they use for car parks and so forth? Must it take account of farm shops? Must it take account of businesses which supply venison for home consumption and for export? Will it take account of the letting of shooting and stalking rights which are vital to the tourist industry and the rural economy? For example, the number of Italian farmers who now go shooting in Angus where I live is growing every year. It is an important part of the area's rural economy.

If under the Bill any of those aspects could be ignored by Scottish Natural Heritage the Minister should accept the amendment as it stands or bring forward an improved amendment in another place. I hope that he will not ignore the matter completely and I hope that we shall not concentrate only on deer.

The Earl of Erroll

My Lords, I must first declare an interest. I am a trustee of an estate in the Cairngorms. It means that I have a duty to consider how best to balance the long-term interests of the wildlife, the woodland, the people who live on and around the estate and the family who has looked after it for generations and will do so into the future. I hope that the estate will carry on for a great deal longer because that is what long-term planning is about. One does not achieve that so much from a person who holds a position for only a few years. It may be his lifetime but his children and family will not carry on the work after him.

Without adding to the Bill the words contained in the amendments, Scottish Natural Heritage must consider some but not all of the factors. It is not impossible to take them into account. As trustees we have entered into management agreements with the NCC to regenerate areas of birchwood while keeping the deer which are essential to the area's economy. People often forget that the good, old traditional Highland sporting activities employ more people and contribute slightly more money to the Scottish economy than the modern activity of fish farming, which has already hit troubled waters. Therefore, a long-term view is essential.

I have three major worries. The first is that centralising such decisions into one body means that any mistake that is made will affect the whole area, and possibly irreversibly so. The decision will probably be made in good faith. However, we do not know and cannot foresee everything; human beings are not infallible. My second worry concerns bad publicity. It is known that the NCC wishes to regenerate all the natural and birchwood forests. That is very laudable. However, it requires the killing of 80 to 90 per cent., that is, most of the red deer in Scotland. That is admitted.

It is often forgotten that woods also harbour vermin. That will decimate the grouse, so bird interests will be affected. All the forests were planted on flow land. New birds and new wildlife were introduced but so complete was the change that old bird populations were wiped out or moved off. Will that be popular with the conservationists? We know that grouse and other birds will not nest within half a mile of the woodland.

My third worry is that this is socialist legislation. Expropriating the rights of private owners is socialist policy; it is not Conservative legislation. I was always given to understand that the present Government were in favour of private ownership and individual rights, not centralisation.

7 p.m.

Lord Taylor of Gryfe

My Lords, I hesitate to interrupt the noble Earl. He is covering the whole position of nature conservancy which was debated at Committee and Report stages. We are now in the final stages. I wonder whether it is appropriate to deal with the whole range of activities of this new body, or whether the noble Earl should concentrate exclusively on the amendment.

The Earl of Erroll

My Lords, I am about to conclude. The rights of private individuals, who are not given any representation, are being expropriated because landholders are excluded. I thank the noble Lord for raising the point; I had probably not made it clear. If landholders are to be included then I shall not worry. That is the point of the amendment.

I am worried about the devastation of a wrong decision on the economy of the Highlands. It could be as bad as the clearances; the results could be similar. I hope that that does not happen.

Lord Grimond

My Lords, the mover of the amendment made a powerful case regarding the treatment of the red deer. I trust that he will receive a satisfactory answer. I know nothing about deer. I come from a part of the Highlands in which they are a rarity. There are some red deer in Orkney. They were imported. However, the man who imported them apparently did not realise that they could swim. They turned up in odd parts of Orkney because he thought the sea would do the job normally done by fencing.

Valid points have been made about deer. I want to draw the attention of the House to the phrase in the amendment, "traditional land uses". In Orkney there is a suspicion that these conservation bodies are less interested in conserving the existing land, beauty and employment of Orkney than they are in drawing up new schemes for doing something different or designating SSSIs. I hope that those suspicions are wrong.

There is a suspicion that the increase of bureaucracy in these bodies has led to a shift of emphasis from conservation to tourism, development and schemes of that sort. The amendment can usefully draw attention to the need to protect traditional land uses.

It is perfectly justifiable to include landholders in the Bill. Landholders are not the same as the community. It is difficult to say what a local community is. But landholders are vital to the countryside. They made it and they look after it. If the conservation bodies are wise they will make every effort to work with the landholders. Again there is a suspicion that they are against the landholders. That suspicion may be unfounded, but it must be eradicated.

Therefore I share the view of those who do not like incorporating innumerable points into Bills. People will say that something else is left out. If one includes the community, which is extremely important, then one should also include landholders.

Lord Dulverton

My Lords, having tried to say a few words of welcome a week or two ago to the new set-up for Scottish Natural Heritage, I have somehow missed out on a move within the Bill which causes me the most serious and indeed fearful alarm. That is the matter under discussion. It is a move that is taking place to give powers to SNH to advise—virtually to order —the Red Deer Commission, to destroy the native red deer of the Highlands in huge numbers.

Having served both with the old NCC, and for many years with the Red Deer Commission, I know well the pressures from the NCC to reduce deer populations and so enable the natural regeneration of trees and shrubs, drastically reduced over the centuries at the hand of man.

I digress and relate a personal experience. Having pursued an active policy over 20 years to get trees growing again at Glen Feshie in the central Highlands on what I believed to have been truly sound lines, I was under considerable pressure from the NCC to reduce the well-managed—I stress "well-managed"—deer population to enable natural regeneration to take place without protecting fences. That in practical terms—I checked with reliable scientific sources—would have called for a reduction from a total population of over 1,000 deer to around 40 head. Had that been possible to achieve and maintain, with other deer stocks all around, it would have meant the utter destruction of Glen Feshie's main asset. I succeeded in resisting such nonsense and at the same time did much to restore the tree and shrub cover, for which I received praise from a number of quarters.

With those experiences behind me I must tell the House that I am full of fear that the SNH may be given powers virtually to direct the RDC to take an active part in destroying viable and valuable deer populations with all the employment that they generate. Apart from other deleterious considerations, that would have a most damaging effect upon what is an important land use in the Highlands as well as a truly magnificent population of noble and beautiful natural fauna. If the duty we have been speaking of were wished upon the Red Deer Commission the result would be to make it quite unpopular throughout the country. And it already has a difficult enough job to do.

Baroness Strange

My Lords, I support the amendment of my noble friend Lord Pearson. If the clause is carried in its present form my noble friend says that the Government intend in another place to amend Section 7 of the Deer (Scotland) Act to provide additional powers to the Red Deer Commission and Scottish Natural Heritage to control or decimate deer. In layman's terms that means a bloody slaughter of thousands of deer. I find that concept deeply upsetting and repugnant, as I am sure do other noble Lords.

The Earl of Perth

My Lords, I shall be brief. I have heard all the eloquent defences of the deer and I am sure that the Minister will pay attention to them. I want to speak on Amendment No. 8 which deals with the interests of local communities.

We have heard most eloquently expressed by the noble Lord, Lord Grimond, and my noble friend Lord Charteris, that those who live on that land—the landholders and the tenants—know a great deal and are the best guardians of where they live. I hope therefore that the amendment will be accepted or that we are told categorically by the Minister what "local communities" means. I hope that includes what we have been talking about.

Lord Strathclyde

My Lords, I am grateful to my noble friend Lord Pearson of Rannoch for giving us the opportunity of discussing once again the interests included in this provision of the Bill. I shall speak to the same amendments as my noble friend. The balancing duty placed on SNH will be crucial to the way in which it will exercise its functions. I can well understand noble Lords wishing to be quite clear as to the elements SNH should need to take appropriate account of. I am grateful to my noble friend for providing a useful opportunity to attempt to clarify the position regarding field sports, as I am aware that my remarks on this subject on Report caused my noble friend some anxiety.

As I said on that occasion, field sports are a vital part of the financial viability of estate management. No one can deny the contribution that they make to employment in Scotland and to the country's revenue. I am most anxious to make that clear. But what I must also make equally clear is the fundamental point that the more we agree on the economic importance of field sports, the more certain it must become that they will be taken into appropriate account by SNH as part of Clause 3(c). That provision refers to the need for social and economic development in Scotland or any part of Scotland. "Any part of Scotland" could of course mean a single particular estate. There should therefore be no doubt in anyone's mind that the Bill already does all that my noble friend wishes it to do in relation to field sports.

I may have inadvertently misled my noble friend when I said that field sports are no different from other types of enjoyment of the countryside. There are two aspects to field sports. They can be viewed from the standpoint of those who provide the sport and for whom they are, as I have just said, a most important form of economic activity. But field sports can also be viewed from the point of view of the participant. It is from that standpoint that they can be seen as one of many forms of enjoyment of the countryside. Scottish Natural Heritage will have a two-fold interest in field sports, and will need to take account of both aspects in discharging its duty under Clause 3.

It may not be directly relevant to the amendments that we have before us, but most noble Lords who have spoken have mentioned the plight of deer. I intend to take some time to explain exactly what it is that the Government mean. I shall also explain why the amendments that I promised would be tabled in the other place will be brought forward there rather than in this House. I shall also explain the various anxieties which my noble friends have about the amount of consultation that has taken place.

As regards providing new conservation powers for the Red Deer Commission, I can entirely understand my noble friends' apprehension. I am sure that my explanation of what is proposed will put at rest the minds of my noble friend Lord Pearson and other noble Lords. There is a common consent that in some areas there is an over-population of hinds. The Red Deer Commission, as the Government's statutory adviser on red deer, has made representations to both the Government and owners on this matter for many years. I know that there is disagreement about counting methods. But there is essential broad agreement that there are too many hinds.

The old population of deer, particularly hinds, may in some areas result in damage to natural vegetation and habitat. Many areas of native woodland are failing to regenerate and could well disappear. That is widely regarded as being detrimental. As currently drafted, the Deer (Scotland) Act 1959 does not allow the Red Deer Commission to take into account damage by deer to anything other than agriculture and forestry. In particular, the commission has no statutory requirement to take into account damage by deer to natural vegetation or more generally to the flora and fauna and the landscape.

The Government therefore intend to rectify that by seeking an amendment to the 1959 Act which will allow the commission to take action under Section 7 of the Act to reduce damage to the natural heritage interests in the same way as it can take action where there is damage to agriculture and forestry. I must emphasise that, in view of the views which have been expressed, we are not seeking new powers here. We are merely seeking a broadening of the definition of existing powers to embrace the natural heritage intent. I also understand that broadly speaking the Scottish Landowners' Federation which I met yesterday is essentially in favour of the proposal.

Lord Burton

My Lords, my noble friend is wrong on that matter. I am a member of the executive. So far as I know, this matter has never been discussed by the federation. I do not know where my noble friend got that information.

Lord Strathclyde

My Lords, that is the impression I received, but I am quite happy to be corrected by my noble friend. I know that some of your Lordships are concerned about the effectiveness and strength of the commission's deer control scheme powers under Section 7 of the 1959 Act. I hope that I can allay these anxieties with the following explanation. As currently drafted, Section 7 permits the commission to draw up a scheme for the control of deer where it considers that a cull should be undertaken to prevent further damage to agriculture and forestry, and where the appropriate reduction in the deer numbers cannot be secured voluntarily through consultation with the owners and the occupiers of land. Only where agreement is not obtained can the commission draw up a control scheme. That requires the Secretary of State's approval. These schemes are complex and they are considered to be very much a last resort. The Government and the commission continue to prefer the use of voluntary agreements; but these last resort powers will, as a result of the amendment, ensure that deer numbers can be controlled, and they will encompass damage to the natural heritage as well as to agriculture and forestry.

I now turn to the role of Scottish Natural Heritage in relation to our proposals to amend the 1959 Act. SNH, under the provisions of Clause 2 of this Bill, can give advice covering the natural heritage to anyone it considers appropriate. In the Government's view that advisory role is likely to be a major activity of SNH. It is vital that it is undertaken in a spirit of co-operation so that it is influential in bringing about improvements in the management of all aspects of the environment which affect the natural heritage.

I must make it clear that we shall not legislate to allow Scottish Natural Heritage to dictate deer management policy to the Red Deer Commission. There is a great deal of misapprehension on that point. Both Scottish Natural Heritage and the Red Deer Commission are statutorily answerable to Parliament and they are funded by the Secretary of State. Both have important advisory roles to the Secretary of State. But neither can tell the other what to do although both can advise the other. In the case of deer management the Government expect that Scottish Natural Heritage could provide advice to the Red Deer Commission where there are effects on and implications for the natural heritage. The commission itself may seek such advice. Additionally, Scottish Natural Heritage may provide such advice.

However, in either situation it is up to the commission to decide what to do with the advice in the light of its statutory functions and responsibilities. The commission may decide that it would be inappropriate for it to take action where fencing rather than culling appears to be the most effective solution. It may accept the advice and seek to secure the reduction in numbers in consultation with owners.

Lord Taylor of Gryfe

My Lords, I am sorry to interrupt the noble Lord. He speaks about "the commission". Is it correct to say that we are speaking about two commissions? Can the noble Lord define the area concerning the Red Deer Commission? Can he also say what will happen if there is a conflict about advice?

Lord Strathclyde

My Lords, we are not speaking about two commissions. We are talking about the Red Deer Commission and Scottish Natural Heritage. There will be new powers in that the Red Deer Commission will be allowed to cull deer on the basis that they are damaging the natural heritage. That is on the same basis under which it can currently take the same action in respect of damage done to forestry and agriculture. I am not saying that Scottish Natural Heritage will have a right to demand that the Red Deer Commission cull deer because of damage to the natural heritage. It is that point which my noble friends have been so concerned about; namely, that an environmental body should have the power to dictate to landowners, shooters and everyone else involved in the deer industry. That would be highly detrimental to the industry, and would oblige the Red Deer Commission to act. That is not the position. I also understand that there is some difficulty because I have not produced any amendments. Those will be introduced in the House of Commons.

Lord Mackie of Benshie

My Lords, has the Red Deer Commission, under which the population of deer has doubled, done its job properly? Does the noble Lord envisage any alteration in its set up?

Lord Strathclyde

My Lords, as a Government, we already have a commitment that at some stage in the future we will review deer legislation as a whole. That is broadly welcomed by those who come across the Red Deer Commission and by those who are deeply involved in the deer world and would like to see adjustments to the legislation to make the management of deer more effective.

I hope that I have both clarified the Government's intentions on amendments to the 1959 Act and removed the concerns of noble Lords about the relationship between the Red Deer Commission and Scottish Natural Heritage. When the Bill returns from the Commons we shall have ample opportunity to debate these matters.

Perhaps I may briefly explain why the amendments were not brought first to the House of Lords. We announced our intention only at the end of October. Since then we have formally sought the views of three relevant statutory agencies—the Red Deer Commission, the NCC and the Countryside Commission—and have received views informally from other interests. Indeed we received further views from the Red Deer Commission only a few days ago—some of those ideas were picked up by my noble friend Lord Glenarthur—and so we have not had time to digest them.

Lady Saltoun of Abernethy

My Lords, have the Government sought the views of the British Deer Society?

Lord Strathclyde

My Lords, I am aware that the British Deer Society has made its views well known to the Government.

We were therefore not in a position to make final decisions and to instruct the drafting of the necessary amendments in time for Third Reading in this House. I heralded that quite plainly at Second Reading in November. This is clearly an important issue and we must take time to make sure that we get it right. That is why we take account of all the views expressed. We have had an opportunity today to listen to my noble friend's views. Everything said in this debate will play a part in setting the framework of the amendments for when they come before the House of Commons. There has never been any suggestion of cowardice on the part of the Government in bringing forward amendments to the House of Lords. I would much rather have had these amendments in the first place. We could then have got to grips with them while at the same time allaying the fears of some noble Lords about what will happen to the deer.

Perhaps I may briefly turn to the amendments themselves. The reference to, other traditional land uses and sources of rural employment", is somewhat vague and imprecise. My noble friend has not precisely defined what he means. I am not sure that the term covers anything that is not already dealt with in Clause 3(c) by "social and economic development". Indeed, the matter is well-covered in Clause 3(c). I also appreciate the reasons behind the wish to include a reference to the landholder. My noble friend Lady Carnegy asked me whether that has appeared in other legislation. It may appear in ancient legislation but there is no recollection of it in newer legislation. However, that does not necessarily mean that it is a bad thing.

I am not disputing the needs behind the amendments. There are grounds for concern. I feel that the Government should look again at how Clause 3 is worded and we can consider how we can include some of the ideas put forward by my noble friends. I do not feel able to accept the amendments as they stand. I hope my noble friend Lord Pearson will understand that. I accept on balance that something more is needed in paragraphs (b), (c) and (d) of the clause. I shall therefore take away the issue if my noble friend withdraws the amendment. I shall look again at the drafting and then bring forward an amendment in the House of Commons. In the light of that undertaking, I hope that my noble friend will be prepared to withdraw the amendment.

The Earl of Perth

My Lords, several noble Lords have asked about the meaning of "local communities". Does the term include landholders and tenants? It is essential for us to have that question answered before we can make a judgment.

Lord Renton

My Lords, I ask my noble friend to bear in mind another point when considering the drafting. The word "development" in paragraph (c) is one of limitation. It is a word of somewhat narrow effect. My noble friend should not rest upon that, thinking that it covers the various other things which my noble friend Lord Pearson has suggested.

Lord Strathclyde

My Lords, I have been asked two clear questions. The noble Earl, Lord Perth, asked about local communities. The noble Lady, Lady Saltoun, pushed through an amendment at Report stage. The Government were keen not to include local communities on the basis that they were already included in paragraphs (b) and (c). However, the Government were overturned on that matter. We were not prepared to accept the amendment precisely because of the point raised by the noble Earl—what are local communities? I do not have a very good answer to that question. We shall have to see what happens when the Bill goes to another place.

In my assurance concerning the substantive amendments before us I said that I would review paragraphs (b), (c) and (d). That review will include a close look at what the House is trying to say when it refers to local communities and landholders. We can then ensure that landlords, tenants and all those involved on the rural side of the land are included within the definition. The idea of the definitions was to make the provision as wide and as all-encompassing as possible.

I say the same thing to my noble friend Lord Renton. I understand the point that "development" is in some way limiting and that it deals with something new rather than old. That is precisely one of the issues I shall look at in my review of the wording.

Lord Pearson of Rannoch

My Lords, I am grateful to my noble friend the Minister for his explanations. My noble friend Lady Carnegy queried the wording of the amendments and asked whether interests other than deer might be genuinely included in them. Unfortunately, the debate started off on that point and may have focused too much on that area. There are of course other major concerns. I would expect some of the activities mentioned by my noble friend to be covered by the amendments. One thinks of trout fishing. I hope that noble Lords will not think me facetious if one includes the cutting of peat and other activities of the traditional rural economy. I was grateful for what the noble Lord, Lord Grimond, said about landholders. He said that he does not object to telescoping expressions in an amendment of this kind. It is true that the wording was suggested by the Scottish Landowners Federation. It was rather windy of the word "landowner". I do not think that other noble Lords were so fearful this evening. The word "landholders" was aimed at landowners and their tenants and occupiers.

However, I am most grateful to my noble friend the Minister for the assurance that SNH will in no circumstances dictate to the Red Deer Commission and for the other assurances which he gave. On the understanding that we shall be able to have close and proper examination of the alterations to Clause 3 on its return from another place, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

7.30 p.m.

Lord Strathclyde moved Amendment No. 7: Page 2, line 40, leave out ("sustainable").

The noble Lord said: My Lords, this amendment is designed to correct some confusion which crept into our proceedings on Report on 18th December. Your Lordships may recall that we divided on a pair of amendments moved successfully by the noble Lady, Lady Saltoun of Abernethy. The substantive amendment of course related to the inclusion in SNH's balancing duty of a reference to, the interests of local communities".

I confirm to the House that we shall look closely at that aspect of the matter. There was some confusion, however, as to the correct number of that amendment, and as a result both the reference to "local communities" and the reference to "sustainable" earlier in Clause 3 were included. That was not intended. I beg to move.

On Question, amendment agreed to.

[Amendment No. 8 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 9: Page 2, line 42, at end insert: ("(e) the need to conserve and interpret the archaeological, historical and cultural heritage of Scotland").

The noble Lord said: My Lords, this amendment has been put forward because the Bill as drafted does not appear to recognise the key relationships between the natural and the archaeological heritage. It is not just that archaeological and historic sites and monuments hold an intrinsic value—though obviously they do—but that their presence contributes to the visual beauty and diversity of landscape. Landscape is also the storehouse of information about the way our ancestors interacted with the natural heritage and, therefore, about the evolution of the landscape. Conservation of the landscape and its natural heritage requires that knowledge.

The amendment would secure the recognition of such factors. It would allow Scottish Natural Heritage to take an interest in the evaluation of the heritage in its care and to work with other appropriate authorities, thus ensuring its future conservation and sustainable use. I do not think that this is an epic-making amendment, but I believe that it is a helpful one. I hope that the Minister will be able to accept it. I beg to move.

Lord Strathclyde

My Lords, I am grateful to the noble Lord for highlighting the need to conserve and interpret the archaeological, historical and cultural heritage of Scotland. That is certainly a task which the Government strongly support. It is, of course, a role which is undertaken very successfully by, for example, the Royal Commission on Ancient and Historic Monuments of Scotland and the Historic Buildings and Monuments directorate of the Scottish Office Environment Department which is shortly to achieve agency status under the name Historic Scotland. The concept of the cultural heritage causes some difficulty, partly because of its wide-ranging nature but also because the word "cultural" is generally perceived as being in contrast to "natural".

SNH will inherit the present close links with HBM which both NCCS and CCS have at present. There is a great deal of very useful co-operation between these bodies at the moment, both in general and on specific projects. While the importance of archaeology will be fully recognised by SNH, a specific reference to it in the Bill is not required as a result of the links already mentioned.

There are a number of problems with the amendment. The reference to "interpret" would take SNH considerably beyond its logical remit. For those reasons I am not prepared to accept the amendment, but I trust that the noble Lord will accept what I said in the spirit in which it was intended. I believe that it is worth explaining to the House exactly what are our views on such an important subject. In the circumstances, I hope that the noble Lord will withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, I am grateful to the Minister. I hope that we can proceed with the Bill as amicably as we have just dealt with this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Nature conservation functions]:

Lord Strathclyde moved Amendment No. 10: Page 3, line 5, at end insert: ("( ) The amendments made by Schedule 9 to that Act to enactments extending to Scotland shall continue to extend to Scotland.").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 28, 29 and 42. This group of amendments deals with the relationship of Scottish Natural Heritage to nature conservation legislation as embodied in, and amended by, the Environmental Protection Act 1990. I beg to move.

On Question, amendment agreed to.

Clause 5 [Development projects or schemes]:

Lady Saltoun of Abernethy moved Amendment No. 11: Page 3, line 38, at end insert: ("(3A) Where, in the exercise of its functions under subsections (1) and (3) above, SNH proposes any development project or scheme other than the designation of an SSSI, it must give notice in writing of such project or scheme to the owners and occupiers of the land concerned and to the local planning authority in whose area the land is situated, and such project or scheme shall be subject to an appeal procedure to be set out in a statutory instrument made by the Secretary of State. (3B) Any statutory instrument made under subsection (3A) above shall be subject to affirmative resolution of both Houses of Parliament.").

The noble Lady said: My Lords, we know that the Countryside Commission wishes to make four national parks in the mountain areas of Scotland. Whether that is a good idea is very much open to argument but it is one of the projects which we know that it wishes to undertake. We also realise as we read Clause 5 of the Bill, starting with subsection (3) and going back to subsection (1), that Scottish Natural Heritage, may undertake … by itself … measures to implement the proposals mentioned in subsection (1)". Those measures are, proposals with respect to any area for a development project or scheme … which fosters understanding or enjoyment of the natural heritage of Scotland". Reading that clause and taking it in conjunction with the amendments which we understand may be introduced in another place to the Deer Act 1959, it would be possible for SNH to put pressure on the Red Deer Commission to cull a large number of deer on the grounds that it wishes to promote the natural regeneration of woodlands without the expense of deer fencing. To achieve natural regeneration of woodlands, mainly birch and without deer fencing, a really massive cull would be necessary. In fact, the near extermination of the deer population would be necessary because the level of deer population compatible with natural regeneration is between one and two beasts per hundred hectares.

When that action had been taken and the deer forest destroyed for stalking purposes, the value of the land would plummet by, at present day values, about £20,000 to £30,000 per stag shot in the stalking season. At that stage SNH could, under the provisions of Clause 5, purchase the land compulsorily in order to establish the national parks. Compensation would have to be paid, but would it be paid at such a level? Have the Government actually considered the cost of compensation?

As a result of such action many stalkers employed on the land would become redundant. This would happen because with little or no stalking potential and no stalking rents, or very inadequate stalking rents, there would be neither jobs for them nor the income to pay their wages. It is possible that some of them might be offered jobs as park rangers, but I do not gain the impression that experienced, skilled stalkers want to spend the rest of their lives picking up the litter left by hikers, or whatever park rangers do.

Stalkers are young men. They have to be young and very fit otherwise they could not do the job. Such young men very often have young children. In Upper Glen Dee, above Braemar, which is an area that I know well, the only young people with children in the glen are the stalkers. The rest of the population are middle-aged or quite elderly. If the stalkers leave the area there will be no young people in the glen. That also applies in many remote areas. Is that what the Government want? It is certainly not what the people concerned want. If that were to happen, it really would be nationalisation by the hack door by an unelected quango created by the Government and accountable to no one.

Amendment No. 11 creates an appeal mechanism. It would give those whose lives will be most affected by the situation that I have described, and whose livelihoods may be put at risk, a chance to make their views heard. To create a body such as SNH without there being any right of appeal against its diktats is unacceptable, undemocratic and worthy only of regimes such as Saddam Hussein's. I beg to move.

Lord Grimond

My Lords, I support the amendment to which I have put my name. The general arguments for a right of appeal have been rehearsed in the House at some length, and I do not intend to go over them all again. I find it extraordinary that the Government should hand these serious powers over rights of property to a non-elected body, without there being any right of appeal. I find it amazing that any government should do that. As a matter of principle, as the noble Lady said, I should have thought that that runs contrary to nearly everything our parliamentary system and law are supposed to stand for.

As I said, the body is not elected; it is appointed. It appears to be able to bypass such elected bodies as might be able to interfere. We are not talking about a minor matter. People are deeply suspicious about having their land designated as an SSSI, and not without reason. As I ventured to say previously, it is a deeply rooted tradition in the Highlands—

Lady Saltoun of Abernethy

My Lords, if the noble Lord will give way, the amendment does not relate to SSSIs. It relates to everything except SSSIs.

Lord Grimond

My Lords, I fully appreciate that point. There is a deep-rooted feeling in the Highlands that the ordinary landowner, be it landlord, crofter or tenant, wishes to hang on to his land. He has had enough of having it run by absentee landlords or public bodies. As I have said, we are treading on delicate ground. We are putting our heavy feet down in a way which would not be tolerated in any other part of our jurisdiction. I therefore support the principle that SNH should be subject to certain appeal procedures and planning authorities when it proposes to take steps which deeply interfere with the rights of individuals.

I pass from that topic to a point that I have already made: if we are to have proper conservation, it is vital that we carry with us the people who live on the land. At the moment we are losing them. There is deep suspicion in Orkney. Far too much of the land has been designated for one purpose or another. No one knows why. I asked the conservation people why the whole of the western end of Orkney has been designated, but there has been no sufficient answer.

Secondly, I hope that the Government have read the speeches of the noble Lords, Lord Pearson, and Lord Kimball on Report. They pointed out where conservation authorities' rulings, without a right of appeal, that overruled the landlords' recommendations had proved to be disastrous. There is no ultimate wisdom in those bodies. They are entitled to say only that they have considered matters carefully and that they are knowledgeable people, but that does not mean that they are God Almighty. No one will hand over decisions on ordinary law and justify that by saying that the judges are good people. We must get the law right. That is what we have so far not done in regard to these matters.

I do not know whether it is in order to quote it, but I was given a letter from the chairman designate. I should like to know whether it is a quotable letter. The note with it said that the Minister might quote the letter. Perhaps I may ask the Minister whether he intends to quote it.

Lord Strathclyde

The noble Lord, Lord Grimond, is talking about the letter that the chairman of NCCS, Mr. Magnus Magnusson, wrote to me, a copy of which I put in the Library. It forewarns my noble friends of his ideas about the future of NCCS and its development into SNH. With respect to the noble Lord, that letter is not relevant to the amendment. It is relevant to Amendment No.30 which I hope we shall discuss soon.

Lord Grimond

My Lords, it appears to me to be relevant to all these amendments. I gather that it is in order to quote from the letter. As I said on Second Reading, I have the highest admiration for the chairman designate. He is an admirable choice. In many respects the letter is useful and important, but I am not convinced by its main argument. I understand it to mean that he will reconsider all these matters of designation, schemes and so forth and would like matters left as they are until he has done that. I reject that argument. We have had a long experience of SSSIs and different schemes and they have proved to be unsatisfactory. Many Members of the House, including the noble Lords, Lord Campbell of Croy and Lord Taylor of Gryfe, have constantly raised this matter. It is not a new matter. We have experience of it, and we should act upon it.

It is not right for Parliament to say, "We know that all this needs altering. We know that it is bad, but we intend to continue it for some indefinite period". It is difficult to decide how long it may take before a conclusion is reached. The right course is for Parliament to put the matter right, as it sees it now, and then if SNH wishes to amend the scheme in years to come, all well and good. Surely no one will say that, once a defect in the law has been proved, one should continue with the law. One should alter it as soon as possible.

If the new body is to be successful, it is essential that it carries with it the people in the Highlands. I have said that four times this evening and on many previous occasions. The conservation body failed to do so a year or two ago in Orkney—the situation may now be better—because it rode roughshod over people. I know a man who was simply told one day that he could no longer cut peat from his peat bank which his family had worked for generations. That would be intolerable in any other part of this country. It is intolerable in the Highlands. It is essential that SNH starts off on the right foot, and that in the Bill the House amends the procedures which have proved to be unsatisfactory so as to give the new body a chance to say that it is starting on a better footing and, "We admit that our predecessors have been wrong in the past. We admit that there are things that need doing. Here is the first instalment. We shall consider the whole matter further. It may then need reconsideration, but in the meantime we agree that there are faults and that those faults should be put right".

Lord Campbell of Croy

My Lords, as the noble Lord mentioned me perhaps I could intervene. I spoke on the Environmental Protection Bill last year which is the parent Bill. I understand the sentiments expressed by the noble Lord, but I must make it clear that the amendment relates to projects or schemes other than the designation of SSSIs. When I spoke on that occasion and on the Second Reading of this Bill, I dealt with the huge area of SSSIs and the feelings that have been generated in certain areas of Scotland that they blighted or devalued the land. They are feelings that are probably not justified but which nonetheless exist.

I agree with the sentiments, but I must make it clear that when I was speaking I was not talking about anything to do with the amendment. I might be able to help the noble Lord if I say that my understanding is that SSSIs were introduced in legislation about 1948 and were hardly used until the early 1980s when the Wildlife and Countryside Bill was enacted. As I see it, one of the reasons that we are not discussing the designation of SSSIs is that it is not in order to try to change a major statute—that is the Wildlife and Countryside Act—in the course of this Bill. Therefore we are discussing something different, that is projects and schemes.

Perhaps it will save time if I say this now instead of on Amendment No. 30 where it could perhaps be more relevant. When I spoke on previous occasions I said that I hoped the changes in the Bill would help to promote confidence by bringing all the decisions and consultations much nearer to the people in the remote Highlands, central Scotland or wherever it might be. I drew attention to the fact that there was concern about the lack of an appeal. I hope that the changes that the Environmental Protection Act introduces and this subsequent Bill will help to promote better feelings in Scotland and overcome some of the difficulties.

I am not sure whether the noble Lady, Lady Saltoun, intends to pursue the point. She has given us a chance to debate it by suggesting a whole new procedure with statutory instruments on schemes and projects. I hope that we will not need to make a change like this in the Bill on Third Reading but will see how the new arrangements work. After all, there is quite a lot to swallow and much to be done, if we consider that the Nature Conservancy Council will be disbanded at the end of March, only a few weeks away. We have much to do and I prefer to see how the new organisation and the new arrangements settle down. I hope that they will lead to much better feelings in the areas concerned rather than trying to make changes like this. However, I congratulate the noble Lady on allowing us to discuss the subject by putting down the amendment.

The Earl of Dundee

My Lords, with this proposed amendment we are considering the relevance of the principle that there should be a right of appeal against designation of national parks or any project other than an SSSI. It could, I suppose, be argued against the amendment that it might lead to too much hard work for everybody. However, in this case where the designations will be few, that is hardly likely.

Lord Campbell of Croy

It is not designations.

The Earl of Dundee

My Lords, I stand corrected, it is not designations. Nevertheless it is a decision by the SNH to create national parks or something other than an SSSI. Even if what is proposed by the amendment were to lead to extra work, surely it would be unreasonable to contend that that is a more weighty matter than upholding the important principle of appeal.

Another consideration is that if we do not have a system of appeal at all, we put far too great a burden on the SNH whose officers would have the unenviable task of enforcing an irrevocable decision which everybody might well live to regret. There was the warning given by Winston Churchill about unelected bodies and institutions which are allowed to become too powerful and whose utterances become the solid masonry of unquestionable opinion and the padded cells of indubitable facts.

On the other hand, it has been alleged that, while it may be in order to avoid such excesses and instead to maintain a sensible system of appeal in Scotland, it would not do at all to bring such well balanced arrangements south of the Border. If that fear really exists and we decide in favour of the amendment—as I hope we shall—it will not be the only time that north of the Border we have set a good example and done the right thing first.

Lord Taylor of Gryfe

My Lords, we have had three speeches from the other side of the House and so far as I can gather none from this side. Perhaps I may intervene to say that I support the general view expressed by the noble Lord, Lord Grimond, but we are not dealing with SSSIs. We may return to the theme of his speech on Amendment No. 30 which deals specifically with SSSIs.

In so far as Amendment No. 11 contains provisions for an appeals procedure on decisions of the new Scottish Natural Heritage, I support it. I have always felt rather nervous about it having powers. As the noble Lord, Lord Grimond, pointed out, a body appointed by the Secretary of State and responsible to no one has complete powers in these matters. That is a dangerous precedent.

The amendment refers not only to the owners and occupiers of land but also to the local planning authority. I have always felt that local authorities should be involved in these decisions. They are the elected representatives of the people who are affected by the decisions. The local planning authorities in most parts of Scotland have, by agreement, adopted in their areas a land use strategy. Surely any decisions of the new body should be related in some way to the thinking and the attitudes of the local people in the development of the land use strategy. Therefore, in so far as it introduces the appeals procedure and the rights of the local authorities and local planning authorities, I hope that the amendment will be approved.

Baroness Carnegy of Lour

My Lords, I have much sympathy for the amendment and for the amendment on SSSIs which was defeated in the House. It was a pity that the House did not allow the Government to go a little further and did not rule it out of order. That has been somewhat damaging to our discussion on the subject.

It seems to me unfortunate to suggest that there should be an appeals system for matters other than SSSIs but not one for SSSIs. They are much the most likely to damage the interests of small people in agriculture and similar occupations. Justice demands that much more than this proposal. If we were talking about National Power that would be a different matter, but we are talking about any project other than SSSIs which seems to me to be a wide-ranging suggestion.

To talk of local planning authorities is not adequate. It may well be the strategic planning authority where there are separate councils, one of which is local, the other having strategic planning responsibilities. They should be included. Of course landowners, land users and land occupants should be asked about developments. That would not be setting a precedent; the Countryside Commission consults with landowners all the time about different projects which it undertakes. It seems to work quite well, although occasionally there is a squabble and there can be a compulsory purchase. However, I should not have thought that to adopt this amendment when there is none similar for SSSIs is the right way round. I think it is overdoing things; it would be enormously expensive and unwieldy. The amendment is a good vehicle for discussing the issue but it is not at all a good amendment.

Lord Mackie of Benshie

My Lords, I support my noble friend Lord Grimond on the amendment. It was brought forward because unfortunately the Labour Party did not support the amendment on SSSIs. That is why this amendment was tabled. It is not just to protect the interests of the owners of deer forests but, as my noble friend said, of the man who cuts peat. I feel more deeply for his interests.

This is a principle to which the Government must pay attention. I was having lunch today with a distinguished Scottish lawyer. He said that in his opinion an appeal to the European Court of Justice on the point of no appeal against decisions by an arbitrary appointed body would probably succeed. The Government would be wise to pay some attention to this notorious injustice.

8 p.m.

The Earl of Perth

My Lords, we are creating—and I welcome it—Scottish Natural Heritage. But let us be quite clear: we are also creating a quango. It may be, and I hope it will be, a good quango doing a wonderful job along the lines of the Bill. In general principle, I believe all noble Lords welcome it. However, we are giving it powers that can affect the lives and well-being, indeed, the very livelihood, of those who live in Scotland. Have they, after consultation, if the quango decides otherwise, anywhere to go to protect themselves? No. There is no appeal.

Nor is there any appeal, it is argued, in England and Wales. Very well, England and Wales might well follow the lead of Scotland, as has so often happened. To argue that a lack of trust is being shown in the new body is totally unrealistic. It may well be that for five years it will behave well. But what about after five years? Who knows? I hope very much that your Lordships will go along with the amendment. It is vital to our confidence in the heritage body. It is a pity that we cannot also cover SSSIs. However, there is another method in Amendment No. 30 for tackling that matter. I ask the Government to recognise the importance of what we are asking.

Baroness Strange

My Lords, I support the amendment of the noble Lady, Lady Saltoun. I stress to my noble friend Lord Strathclyde that the Bill applies only to Scotland and to Scottish interests and has no effect on any other part of the United Kingdom. It seems to me that the clause is totally against the Arbroath declaration of independence and that to allow any body, however praiseworthy its aims, to take total power without any redress to the individual is an utter negation of personal liberty and freedom, and as such should be resisted by anyone who upholds democracy.

Lord Pearson of Rannoch

My Lords, I should like to add to what the noble Lady, Lady Saltoun, said about Clause 5. To get an understanding of its sweeping powers one has to start with subsection (3), which allows Scottish Natural Heritage to undertake by itself almost any of the measures in subsections (1) and (2). So far as I can see those powers would allow the SNH to set up national parks without appeal and would certainly allow SNH to carry out control schemes for deer with or without the Red Deer Commission.

It might be helpful if I say that I understand that the reason for such sweeping powers being included in the Bill is that SNH is to embody the powers of both the Nature Conservancy and the Countryside Commission as they were separately. When they were separate, they often used to squabble about things. Now they are being merged they are likely to be agreed about some highly undesirable objectives. Two of those objectives are setting up national parks and shooting huge numbers of deer. I cannot help feeling that an appeal procedure in the background would make them behave much better in regard to these issues and others mentioned by noble Lords. That is why I feel that some form of appeal is so appropriate.

Lord Carmichael of Kelvingrove

My Lords, may I ask the noble Lord the Minister a question? We shall soon be discussing Amendment No. 30. It seems to me in retrospect a pity that these amendments were not grouped. We have really heard all the arguments for Amendment No. 30. I do not think we have missed any. I wonder therefore whether the Minister would consider grouping them. It is now Third Reading. It would assist expeditious control of business if that were done.

Lord Campbell of Croy

My Lords, before the noble Lord sits down may I say that I think it is too late now? I agree that it would have been better if the two had been grouped, but it would be a little unfair. All I suggest is that we have a self-denying ordinance and do not repeat ourselves on Amendment No. 30.

Lord Strathclyde

My Lords, if I may join in this debate, Amendment No. 30 deals with SSSIs and an appeals procedure, and I look forward to, and relish, the discussion we shall have on that amendment. Amendment No. 11 has nothing to do with SSSIs, although it has an appeals procedure. What I hope to explain in the course of the next few minutes is that the amendment is totally unnecessary and that noble Lords have misunderstood the provisions of Clause 5. There is nothing to get worried about, and I hope that the noble Lady, Lady Saltoun, will withdraw her amendment.

The type of projects which we intend SNH to carry out under the provisions of this clause are very much of the type already undertaken by the Countryside Commission for Scotland in relation to countryside matters under Section 5 of the Countryside (Scotland) Act 1967. Indeed, the clause is very largely an updating of the provisions of Sections 5 and 6 of the 1967 Act and does not propose any new mechanisms for undertaking projects. There is no question of it contravening the declaration of independence of Arbroath, which my noble friend Lady Strange mentioned. At least, I hope not.

SNH, like the Countryside Commission for Scotland, would be quite able to carry out projects on land which it owned itself. In the case of land belonging to someone else it would obviously require the agreement of the landowner concerned before SNH could implement the proposals for the particular projects. It might be useful if I attempted to explain what might be involved in such schemes. Many similar schemes undertaken by the Countryside Commission for Scotland in the past have been concentrated on urban fringe areas, notably the Kilpatricks and Clyde-Calders projects, and have made a valuable contribution to the regeneration of the countryside around towns. Certainly, we would wish this sort of work to continue with the creation of SNH.

This is a completely different type of arrangement to an SSSI. It is intended that these development projects should in some way improve upon an existing situation and so they are not, as such, designations geared purely to the conservation of an area, as is the case with SSSIs. We had a valuable discussion on Report concerning the scope of Clause 5, and I think it would be useful to emphasise some of the points which were made then in order to reassure your Lordships as to how the clause will operate.

Clause 5 does not empower Scottish Natural Heritage to set up and run any kind of project which might be considered appropriate to achieving its general aims and purposes. It is deliberately restricted to projects which will demonstrate new approaches to natural heritage issues. Emphasis is to be on experimentation and creativity and this is achieved by requiring any proposals prepared by Scottish Natural Heritage to meet both of the criteria specified in subsection (2). Thus, while a proposal may involve the application of established, as well as entirely innovative methods, concepts or techniques, it must also be designed to show the appropriateness of the project to the area in question or to similar areas. If it does not overcome that second hurdle, because, for instance, an identical project has already been undertaken in a similar area, the project is not one with which Scottish Natural Heritage may get involved.. I hope that I have said enough to illustrate the restrictive nature of Scottish Natural Heritage's powers under this provision.

Turning to the question of Scottish Natural Heritage's powers under Clause 5 vis-é-vis landowners, in most instances where the Countryside Commission for Scotland has used such schemes previously, the agreement of the landowner has been very easy to obtain since the land concerned has generally been of little value and not in any gainful use. I anticipate that the same will be done for any order put forward by SNH. Consequently, the procedures proposed in this amendment are not necessary. In the unlikely event of SNH wishing to pursue a project where the landowner does not consent, it could in theory do this by means of compulsory acquisition of the land, subject to approval by the Secretary of State. It is very unlikely that such a situation would arise for the reasons I have just explained; but if it did, such action would be subject to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 which allows for objections to be made to the compulsory purchase order and a public local inquiry to be held if necessary. This in itself is sufficient protection for landowners and local people in the event of a dispute.

Noble Lords may be anxious about the apparent scope of subsection (3) of Clause 5. I can give a categorical assurance on this point. Subsection (3) merely confers a power on Scottish Natural Heritage to take measures to implement its proposals. This does not affect the rights of third parties. More specifically, it does not mean that Scottish Natural Heritage is exempted from complying with any requirement under the general law which might be applicable to the measures that it proposes to take.

If I may use an analogy, subsection (3) is like part of the memorandum and articles of association of a limited company. A company can do only what it is expressly empowered to do by those documents. Similarly, a statutory body such as Scottish Natural Heritage can only have functions conferred on it by statute. A company may be empowered by its memorandum and articles of association to operate licensed premises, but to do that it must first acquire suitable property, by agreement, and then obtain a liquor licence. Likewise, subsection (3) empowers Scottish Natural Heritage to implement its proposals for a development project or scheme. However, before doing so it must obtain any planning permission that might be necessary, and also the consent of the owner of the land on which the measures are to be taken. Failing such consent, Scottish Natural Heritage's only alternative is to acquire the land and, as I have already mentioned, there are already adequate procedures laid down to protect the landowner's interests in this situation. There is nothing in Clause 5 which will override these general principles. Scottish Natural Heritage has no other powers available allowing it to carry out a development project or scheme against the owner's wishes. There are some specific objections to the terms of the amendment, for example that the appeals procedure is unnecessarily heavy-handed. I shall not delve any further into that.

The current provisions in the 1967 Act on which Clause 5 is modelled have operated successfully for more than 20 years and I am not aware of their causing any difficulty so far as concerns landowners. I can assure noble Lords that, as a matter of law, the amendment is not necessary to limit the powers of Scottish Natural Heritage under this clause and so I trust that the noble Lords will withdraw it.

I shall respond to the fear expressed that Scottish Natural Heritage could use the powers under this clause to introduce national parks. That clearly would not be possible under the terms of this clause. It is for the Government and not for Scottish Natural Heritage to make a decision on national parks. Scottish Natural Heritage can advise on such matters and that would be expected; but it is for the Government to make such decisions. I hope that I have made myself clear.

Lord Pearson of Rannoch

My Lords, I am grateful to the noble Lord for giving way, but that is not what the clause states. The clause says: SNH may undertake … by itself … measures to implement the proposals mentioned in subsection (1) above". Subsection (1) refers to a, scheme which … fosters understanding or enjoyment of the natural heritage of Scotland". That is all the clause states. That is the only way one can read it. It does not mention other legislation.

Lord Strathclyde

My Lords, Clause 5(2) (a) qualifies that by stating that proposals shall, in relation to that area involve the application of new or developed methods, concepts or techniques". National parks would hardly fit into the criteria of Clause 5(2) (a) or (b). I hope the noble Lord will accept that point.

Lord Pearson of Rannoch

I must confess that I have not had time to examine that point. However, on the other hand, the provision is designed to illustrate the appropriateness of a project. Certainly the scheme we are talking about could relate to our old friend, the mass culling of deer. The clause seems to be very powerful. It certainly requires some form of simple appeal which the Secretary of State himself can decide.

Lord Burton

My Lords, I take it that if a cycle track or a long distance path were desired, the heritage body would be able to implement such facilities without any appeal.

Lord Strathclyde

My Lords, as I have explained, SNH needs to obtain the agreement of the landowner. I understand that as a matter of general law nothing more is needed in this clause. Clause 5(3) does not allow Scottish Natural Heritage to do anything unlawful. Therefore SNH cannot do things which break the general law. This measure is not an overriding power on anything that Scottish Natural Heritage would wish to do.

Lady Saltoun of Abernethy

My Lords, in spite of all that the noble Lord, Lord Strathclyde, has said, it still seems to me that Clause 5 gives SNH considerable powers. If the appeals mechanism that we have suggested is heavy-handed, it can possibly be amended at a later stage. I still stand on my premise that to create a quango—SNH is a quango—without an appeals mechanism for any of the projects that the quango may introduce which may affect people's lives and livelihoods is intolerable. I accept that there is an appeals mechanism for compulsory purchase, but there are all kinds of other things which the body may wish to undertake for which there is no appeals mechanism. In view of the amount of support that this amendment has gained on all sides of the House, and as I am still not convinced about the matter, I shall ask the opinion of the House.

8.16 p.m.

On Question, Whether the said amendment (No. 11) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 45.

Division No. 3
Acton, L. Margadale, L.
Allenby of Megiddo, V. Masham of Ilton, B.
Astor of Hever, L. Massereene and Ferrard, V.
Boardman, L. Monson, L.
Brightman, L. Napier and Ettrick, L.
Burton, L. Newall, L.
Cairns, E. Norfolk, D.
Charteris of Amisfield, L. Northesk, E.
Cochrane of Cults, L. Onslow, E.
Craigavon, V. Palmer, L.
Craigmyle, L. Pearson of Rannoch, L. [Teller.]
Dulverton, L.
Dundee, E. Perth, E.
Elliot of Harwood, B. Rankeillour, L.
Erroll, E. Rees, L.
Ezra, L. Renton, L.
Gisborough, L. Rochester, L.
Glenarthur, L. Roxburghe, D.
Greenway, L. Russell, E.
Grey, E. Saltoun of Abernethy, Ly. [Teller.]
Grimond, L.
Grimston of Westbury, L. Soulsby of Swaffham Prior, L.
Grimthorpe, L. Stodart of Leaston, L.
Hacking, L. Strange, B.
Hollis of Heigham, B. Swansea, L.
Hooson, L. Taylor of Gryfe, L.
Jeffreys, L. Thomson of Monifieth, L.
Kimball, L. Tordoff, L.
Kinloss, Ly. Vestey, L.
Lawrence, L. Winchilsea and Nottingham, E
Lindsey and Abingdon, E. Winstanley, L.
Lyell, L. Winterbottom, L.
Mackie of Benshie, L. Woolton, E.
Mancroft, L.
Arran, E. Jenkin of Roding, L.
Astor, V. Kagan, L.
Belstead, L. Layton, L.
Blatch, B. Lockwood, B.
Blease, L. Long, V. [Teller.]
Blyth, L. Mersey, V.
Borthwick, L. Molloy, L.
Brabazon of Tara, L. Mountevans, L.
Brougham and Vaux, L. Nicol, B.
Butterworth, L. Parry, L.
Caithness, E. Prior, L.
Campbell of Croy, L. Quinton, L.
Carnegy of Lour, B. Reay, L.
Cavendish of Furness, L. Romney, E.
Clanwilliam, E. Skelmersdale, L.
Cumberlege, B. Strathclyde, L.
Davidson, V. Strathmore and Kinghorne, E.
Denham, L. [Teller.] Taylor of Blackburn, L.
Galpern, L. Thomas of Gwydir, L.
Graham of Edmonton, L. Trumpington, B.
Henley, L. Wade of Chorlton, L.
Hesketh, L. Wynford, L.
Hives, L.

Resolved in the affirmative, and amendment agreed to accordingly.

8.25 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 12:

After Clause 5, insert the following new clause:

("Vehicle restriction orders

.—(1) For the purpose of preventing damage to the natural heritage, SNH may, by order (hereinafter referred to as a "Vehicle Restriction Order") restrict the use of all-terrain or other vehicles on land. An order made by SNH under this section shall be submitted to the Secretary of State and shall not have effect unless confirmed by him.

(2) Such an Order shall define—

  1. (a) the area of land within which the use of such vehicles is to be restricted;
  2. (b) the restrictions which shall apply; and
  3. (c) the reasons by which SNH were motivated to make the order.

(3) An order made under subsection (1) above may relate only to land which is—

  1. (a) a nature reserve within the meaning of section 15 of the National Parks and Access to the Countryside Act 1949 or an area which is subject to an agreement under section 15 of the Countryside Act 1968 (Areas of Special Scientific Interest);
  2. (b) a National Scenic Area designated under section 262C of the Town and Country Planning (Scotland) Act 1972;
  3. (c) an area in respect of which SNH has prepared proposals for a development project or scheme under section (5) above; or
  4. (d) a long-distance route within the meaning of section 54 of the Countryside (Scotland) Act 1967.

(4) Subject to subsection (5) below, no person shall use all-terrain or other vehicles on land defined in an order made under subsection (1) above in contravention with restrictions defined therein.

(5) Subsection (4) shall not apply if—

  1. (a) the use of the vehicle was made with the written consent of SNH, or
  2. (b) the use of the vehicle related to an emergency, particulars of which were notified to SNH as soon as practicable after the emergency.

(6) A person who contravenes subsection (4) above, shall be liable—

  1. (a) on summary conviction, to a fine not exceeding level 5;
  2. (b) on conviction on indictment, to a fine.

(7) An order made under this section shall be registered either—

  1. (a) in a case where the land affected by the order is registered in that Register in the Land Register of Scotland; or
  2. (b) in any other case, in the appropriate Division of the General Register of Sasines.

(8) The provisions as to the making, confirmation, coming into operation and validity of orders in Schedule 3 to the Countryside (Scotland) Act 1967 shall also apply to orders made under this section.").

The noble Lord said: My Lords, Amendment No. 12 is to insert a new clause. Perhaps it would be helpful if we took with this Amendment No. 41.

This is rather a long amendment. I am sure the Minister will be well aware of its purpose, and I am anxious to get his point of view on it. The insertion of this new clause would allow Scottish Natural Heritage to make vehicle restriction orders because there are increasingly numerous and significant problems which can be controlled in no other way. To use all-terrain vehicles, ATVs, or off-the-road four-wheel-drive vehicles, has been of enormous value in countryside and estate management, in deer management, for transportation of sportsmen to lochs and river banks, and for other aspects of countryside work. They have all been assisted through the use of such vehicles, but there has been a downside. This has brought significant problems to certain areas of land. Frequent use across fragile terrain, for instance high on the hill or across wet and peaty areas, can result in considerable damage. Ongoing erosion disturbs natural communities, and causes visual scarring.

Vehicle restriction orders are by no means intended to prevent the use of ATVs but to regulate their use within the environmental constraints of various areas, and to ensure that they are used within the resilience of the vegetation, the soils and the physiography of each site.

The more I look at the amendment, the more I become conscious of its rather wordy nature, but it was given to me with the best of intentions. I should like the Minister to explain how the Government see the Scottish Natural Heritage resolving the problem of off-road vehicular uses without the use of some vehicle restriction orders given the difficulties of securing agreement with landowners and other land management interests and given the significant problems highlighted by the recent case in Strath Dearn.

There is a wider issue. The Minister must be aware that in more populous parts of the country close to large urban areas there are complaints about too much use of mountain bikes and motorbikes, and certain areas are being very severely affected by them. This amendment is to try to give the Government some idea of the way we think a restriction order could apply. I beg to move.

Lord Mackie of Benshie

My Lords, I think I know something about the case that prompted this amendment, which is the case of a proprietor of a river in the far North. He used multi-wheeled vehicles to take his fishing guests and fishing tenants—and the income was very important—up to the top of the river. That was causing some damage. I am not taking his part or anyone else's, but merely setting out the conflicting interests in this case. It reached such a point that both sides drove their heels in. At one point he said he would make a branch road. He offered solutions, and the solutions were turned down repeatedly. I do not know what the ultimate outcome was, but this is a perfect example of the need for some form of arbitration procedure or some form of appeal. I do not know how the issue was resolved but I know that both sides dug in their heels.

The proprietor had a very strong case in that many of his tenants, who were paying rent and maintaining employment on the estate, were elderly chaps. They could not possibly walk to the head of the river where they fished and where some of the best beats were. That was one case of the type which we considered in relation to the other points and I hope that the Minister will address both sides of the problem.

Lord Burton

My Lords, I noticed that in moving the amendment the noble Lord appeared to think that the amendment covered mountain bikes. I wonder whether that is the case because they are not mechanical vehicles. I believe that it is highly desirable that they should be included because they are among the most destructive of vehicles. They have a narrow wheel which makes a track down the hill. The water starts running in the track and then one has a burn running down the road. Therefore I hope that mountain bikes will be covered by the amendment but I am not sure that the proposed wording covers them.

Lord Carmichael of Kelvingrove

My Lords, with the leave of the House perhaps I may explain that I raised the question of mountain bikes because wheeled traffic on hills is a growing problem. I recognise that they could be covered without causing too much disturbance to anyone. I noted the point made by the noble Lord, Lord Mackie of Benshie. The matter has to be handled very carefully. That is why I asked the Minister for advice. We have seen in the popular press that that is an activity which is increasingly becoming a worry to those in the countryside.

8.30 p.m.

Lord Strathclyde

My Lords, I am somewhat surprised to see the amendment being tabled today. I know that the use of vehicles in an off-road situation is of concern to some people in particular areas and can cause erosion and create noise and other nuisances. Nevertheless, I regret to say that the Government have not previously been advised of such anxiety by our statutory adviser, the Countryside Commission for Scotland. I should have thought that if there was a pressing or vital need for the introduction of a provision such as the vehicle restriction order proposed here the Countryside Commission for Scotland might well have drawn it to the attention of the Government on a previous occasion. The commission's recently published report reviewing the conservation and management of the mountain areas of Scotland—which is the most authoritative recent statement on these matters—does not analyse the problem or propose the solution set out in the amendment.

I have some difficulty in accepting the detail of the provisions. The Government have stressed that SNH will build upon the voluntary principle developed in nature and landscape conservation over many years. To instigate a system of the sort envisaged by the amendment which allows the imposition of an order without offering the opportunity of agreement with the landowners concerned would go against that essential principle and consequently would damage much of the good will which has been established in such areas.

I also feel that much consultation with all concerned and further investigation of the problem would be required before we could seriously consider a statutory provision along the lines proposed in the amendment. To rush through legislation of this kind is obviously not desirable, nor does it appear to be necessary. It is important that if controls were to be imposed they should be enforceable. Further consideration would be needed on how to achieve that, and quite clearly that is a difficult aspect of the proposal.

In the light of those comments I hope that the noble Lord will see fit to withdraw the amendment.

I do not wish to detract in any way from what the noble Lord, Lord Mackie of Benshie, said. I was not sure whether he was in favour of or against the proposals of the noble Lord, Lord Carmichael. I rather suspect that he was against them. He made other points concerning SSSIs and we shall come to that issue.

Lord Mackie of Benshie

My Lords, before the Minister sits down perhaps I may explain that my point was that the case that I mentioned illustrates the need for some form of appeal or arbitration.

Lord Carmichael of Kelvingrove

My Lords, I am satisfied that the Minister has got the message from those who took part in the discussion. I am surprised that he was not aware of the problem. I believe that the problem is particularly severe in the Lake District, and it is a growing problem in some parts of Scotland.

I can see the difficulty in rushing legislation through. I am sure that he is now aware that this is a problem which, while it may not be enormous now, is likely to grow. The more accessible the countryside becomes the more people will take four-wheel drive vehicles out to the hills.

I hope that the Minister will take the proposal back and have it put in the department's archives so that it can be pulled out when appropriate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Powers of entry]:

Lord Strathclyde moved Amendment No. 13: Page 4, line 42, at end insert: ("( ) the making of an access order by SNH under Part II of the Countryside (Scotland) Act 1967;").

The noble Lord said: My Lords, in moving Amendment No. 13 I should like to speak also to Amendments Nos. 14 to 26, 31 to 36, 39 and 40. The amendments result from a number of undertakings that I gave when we discussed the provisions of Clause 6 both in Committee and on Report. The amendments fulfil those undertakings.

Essentially they concern the rights of entry of Scottish Natural Heritage and rectify several anomalies. I am quite happy to speak to specific amendments if requested. Generally speaking, I believe that they improve the Bill. We have brought together the different rights of entry in different parts of the Bill. We have extended the period of notice from seven days to 14 days. We have also provided that where practicable SNH should contact the owner. I hope that that will suffice. I beg to move.

Lady Saltoun of Abernethy

My Lords, I am very grateful to the noble Lord for the amendments, which fulfil his undertakings given at Report stage.

On Question, amendment agreed to.

Lord Strathclyde moved Amendments Nos. 14 to 26:

Page 5, line 2, leave out ("by virtue of this Act by SNH") and insert ("by SNH by virtue of—

  1. (a) Part II of the Countryside (Scotland) Act 1967; or
  2. (b) this Part of this Act;").

Page 5, line 4, leave out from ("by") to ("may") in line 5 and insert ("SNH").

Page 5, line 10, leave out ("seven") and insert ("fourteen").

Page 5, line 11, at end insert ("and, where practicable, to the owner").

Page 5, line 14, after third ("the") insert ("soil or"). Page 5, line 24, at end insert:

("(5A) Subject to subsection (5B) below, if the sheriff is satisfied that there is a reasonable ground for entry upon any land which a person is entitled to enter in pursuance of this section and—

  1. (a) that admission to that land has been refused;
  2. (b) that such refusal is apprehended; or
  3. (c) that the land is unoccupied or the occupier is temporarily absent,
then the sheriff may grant a warrant authorising that person to enter t he land, if necessary using such force as is reasonable in all the circumstances and a warrant issued in pursuance of this section shall continue in force until the purpose for which the entry is required has been satisfied.

(5B) Without prejudice to subsection (3) above, in any case to which paragraph (a) or (b) of subsection (5A) above applies the sheriff shall not grant a warrant unless he is satisfied that a notice of the intended entry has been served on the occupier of the land and, where practicable, on the owner not less than fourteen days before the demand for entry was made.").

Page 5, line 26, after ("persons") insert ("and such equipment").

Page 5, line 27, leave out ("premises") where it first occurs and inset ("land upon").

Page 5, line 27, leave out ("premises") where it second occurs and insert ("land").

Page 5, line 28, leave out ("premises or) and insert ("land from").

Page 5, line 28, leave out ("them") and insert ("it").

Page 5, line 29, leave out ("them") and insert ("it").

Page 5, line 33, at end insert:

("(7A) It shall be the duty of SNH to compensate any person who has sustained damage by reason of—

  1. (a) the exercise by a person authorised by SNH of any powers conferred on him by virtue of this section; or
  2. (b) the failure of a person so authorised to perform the duty imposed on him by subsection (6) above,
except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person's entitlement to compensation in pursuance of this subsection or as to the amount of the compensation shall be determined by arbitration.").

On Question, amendments agreed to.

Clause 8 [Grants and loans]:

Lord Carmichael of Kelvingrove moved Amendment No. 27:

Page 6, line 7, at end insert (", including payments to persons or bodies outwith Scotland whose purpose assists SNH in attainment of these aims and purposes.").

The noble Lord said: My Lords, the amendment seeks to ensure that Scottish Natural Heritage will continue to provide grant aid for bodies operating in the whole of Great Britain or the United Kingdom, or to international bodies with objectives and aims parallel to those of SNH. In that way we can be certain that SNH will be able to continue important work currently carried out both by the NCC and the Countryside Commission for Scotland in supporting bodies such as the Royal Society for the Protection of Birds, which has a UK remit, and agencies such as the International Union for the Conservation of Nature and Natural Resources (a component of UNESCO) and the European federation of nature and natural parks.

The amendment will also strengthen the resolve and statutory ability for co-operation through the Joint Nature Conservation Committee and statutory conservation agencies in Britain. It will assist in giving clear legitimacy to cross-border projects. I beg to move.

Lord Strathclyde

My Lords, there is no need for the amendment. Scottish Natural Heritage will be a Scottish body dealing with Scottish issues. Its general aims and purposes, as listed in Clause 1(1) will relate to the natural heritage of Scotland. Under the provisions of Clause 8(1) as drafted, SNH will be able to make a grant or loan to any person or body which does anything conducive to its general aims and purposes. There is no restriction on such grants or loans being made only within Scotland. There may well be situations where a British or international organisation wishes to carry out a project which is helpful to the natural heritage of Scotland in some way or another and thus conducive to the general aims and purposes of SNH. In those circumstances, SNH would be perfectly entitled to offer it a grant or loan. I am sure that that will satisfy the noble Lord.

Lord Carmichael of Kelvingrove

My Lords, I am grateful to the Minister for that clarification. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Directions by Secretary of State]:

Lord Strathclyde moved Amendments Nos. 28 and 29: Page 7, line 20, at beginning insert (Subject to subsection (3) below,"). Page 7, line 24, at end insert: ("(3) The Secretary of State shall not give directions under this section in respect of functions conferred on SNH by virtue of section 4(4) of this Act."). On Question, amendments agreed to.

Lord Pearson of Rannoch moved Amendment No. 30: After Clause 10, insert the following new clause:

("Reviewing of existing SSSI's

. — (1) Within 5 years from the appointed date in section 12 below, it shall be the duty of SNH to conduct a review of all Sites of Special Scientific Interest designated at that date, particularly as regards—

  1. (a) potentially damaging operations;
  2. (b) consented activities;
  3. (c) management agreements;
  4. (d) Nature Conservation Orders; and
  5. (e) compensation arrangements,
within the meaning of the Code of Guidance for SSSI's and the Wildlife and Countryside Act 1981.

(2) On completion of its review, SNH shall publish a report on the existing SSSI's, containing for each SSSI a recommendation whether the designation of that area as an SSSI shall be continued or withdrawn.

(3) Where, following publication of the report under subsection (2) above, SNH receives objections from the owners or occupiers of the land or from the local planning authority in whose area the SSSI is situated as to the continued designation of their land as an SSSI within a period of 6 months from the notification of the proposals, and where, after considering the said objections SNH remains satisfied as to the merits of the designation, it shall refer the matter to the Secretary of State.

(4) The Secretary of State shall—

  1. (a) cause a local enquiry to be held; or
  2. (b) afford any person or any representative of SNH, the owners or occupiers of the land and the local planning authority an opportunity of being heard by a person appointed by the Secretary of State for the purpose.

(5) On considering any representations made and the report of the person appointed to hear those representations under subsection (4), the Secretary of State may either—

  1. (a) confirm the continued designation of the land as an SSSI; or
  2. (b) make an order revoking or amending the designation, as he thinks appropriate in the light of the report, representations or objections.").

The noble Lord said: My Lords, this amendment seeks to place a duty on SNH to review all sites of special scientific interest which have been already designated on the date SNH comes into being. SNH would complete and report on this review within five years. If owners or occupiers or the local planning authority are not satisfied with the result of that review, this amendment will grant them a right of appeal.

During the passage of this Bill in your Lordships' House my noble friend the Minister has made more than one statement to the effect that he agrees the Nature Conservancy has been insensitive and that there has been something essentially wrong with the way the Nature Conservancy has operated in the past. He has asked us to trust the new SNH not to behave in a similar fashion in future. Yet as I understand it, all the present staff of the Nature Conservancy, and indeed the Countryside Commission, are being offered employment in the new SNH. The fact that they will in future be based in Scotland is not very reassuring as to their future attitudes, which may well stay the same as their recent attitudes.

The same narrow scientific minds will be applied to the unfathomable mysteries of nature, and it is inconceivable they will always be right. I happily concede that under the new board of SNH, particularly under the guidance of its new chairman, SNH may make many fewer mistakes than did the NCC in the past. As it happens, this amendment does not seek to set up an appeal against SSSIs designated after SNH comes into being; it seeks to re-examine the past which the Minister admits has been unsatisfactory.

I understand that SNH may be intending to conduct its own review of the designations and restrictions made over the past seven years or so. Surely, that must be appropriate, but many of the same scientists who insisted on the designations and restrictions in the first place will now be involved in their revision. It will not be easy for them to admit that they got it wrong. In addition, some restrictions which may have seemed reasonable seven years ago may have become inappropriate in the meantime; but that will not be easy to admit either.

I know that SNH is setting up a new science research and development board which may help SNH towards objectivity in this regard; but I cannot help feeling that it would be very helpful to them to have the knowledge in the back of their minds that if the landowner, occupier or local authority was still not satisfied with their judgment, at the end of the day they could be taken to appeal. I am sure that in those circumstances the appeals would be few and far between and Scotland's natural heritage would be all the more healthy for that. I beg to move.

Lady Saltoun of Abernethy

My Lords, I should like to give an example of the consequences of the Nature Conservancy Council's intransigence regarding the management of an SSSI.

In June 1986 part of Invereshie Farm near Kincraig in Inverness-shire was notified as an SSSI. This was confirmed in 1987, and the Nature Conservancy specified certain operations as damaging. In 1989, a further and overlapping part of Invereshie Farm was notified as an SSSI on the grounds that it was marsh and mire. When the owners pointed out that it was in fact hard gravel, the NCC changed their grounds to "semi-natural woodland and the habitat of a rare biting insect". It is perhaps worth observing here that both the woodland and the rare biting insect were existing very happily before the NCC notified the SSSI and the potentially damaging operations began.

On February 4th and 5th 1990 the River Feshie burst its banks and did considerable damage to both forestry and farmland. The NCC refused to allow the owner to take the necessary steps to reinstate the river to its pre-1990 course. While argument was going on, further damage occurred to the river banks due to flooding later in the year. The February flood reached the farm steading. The boathouse and a chalet at Loch Insh Watersports received damage; the public highway was damaged; at Lynchat there was damage to the railway line, and to roads and bridges in the vicinity. Lynchat and Kingussie sewage works were flooded and the waters came right up to Kingussie School. If the only works that the NCC will agree to are carried out and steps are not taken to restore the river to its proper course future flood damage may be even more severe, but the owners have no option but to sign a management agreement with the NCC, insure so far as possible against flood damage in case they are unable to prove consequential damage against the NCC and negotiate as favourable an agreement in terms of compensation as possible.

It is also interesting that before the land was flooded, there was an abundance of varied bird life: Hoopus swans, rare wild duck and others. This is diminishing as the cessation of grazing and arable farming has destroyed a lot of the birds' sources of food. The Secretary of State, when appealed to, could do nothing because there was no right of appeal against the conditions imposed by the NCC.

I have read a letter sent to the noble Lord, Lord Strathclyde, by Magnus Magnusson, chairman of NCC Scotland and chairman-designate of SNH, virtually saying: "Please do not let anybody make nasty rules about the rights of appeal. We know we have been a bit naughty in the past, but if we promise to try to be good boys in the future please give us a chance". The formal appeals procedure, which he says the nine-month consultation period represents, is about as much use as the right of Little Red Riding Hood to appeal to the Wolf, because SNH will be judge and jury in all matters. As for the law having to be amended in England and Wales, that is the most feeble argument I have ever heard. Let it be amended.

In an article on 12th January in the Daily Telegraph the noble Earl, Lord Cranbrook, chairman-designate of English Nature—the English branch of NCC—was quoted as having said that he would he wary of giving the NCC the absolute power to protect important areas of the British Isles as the British, with their sense of justice, would then demand an appeal system. I am demanding an appeal system, because, as I said before, it is monstrous to create this quango, of which the NCC would be a part, which is an appointed body, not democratically elected, and give no right of appeal against arbitrary and very often ill-informed decisions which not only have the reverse effect to that which they are intended to have, but also cause extensive and dangerous damage to public and private property, and also possibly destroy the livelihoods of the people who live in the area.

I appeal to noble Lords on all sides of the House to support this amendment in the name of freedom and democracy.

8.45 p.m.

Lord Stodart of Leaston

My Lords, I find myself in a certain amount of difficulty because I am a very old friend of Sir Magnus Magnusson—if that is the correct name to use. The last thing I want is to give the impression that I want to give other than a fair wind for the body over which he is going to preside. I am the last person to suggest that the NCC, whose decisions we are now asking him to review, have not had a very important part to play, and that on many occasions I think they have done well. There are many instances of excellent co-operation, due primarily I think to the tactical approach of the NCC's representative. After all, diplomacy is crucial if a farmer is to be persuaded to stop farming part of his land in a way to which he has learnt it will best respond in return for an unknown amount of compensation. Things get very much worse if in response to the farmer's misgivings he is told—I do not say it has happened all that often, but it has happened occasionally—that, whether or not he likes it, this is how it is going to be.

Sadly that is what has happened in what I hope is only a minority of cases. I suppose the effect on the NCC and attitudes toward it is equivalent to that felt by a lady who ran a successful hotel in Scotland. She said to me, "One bad meal takes 50 good ones to undo the damage".

I want to give your Lordships two examples of an area where I think a review is badly needed. First, it is needed on the Island of Stroma off the coast of Caithness which is 1,000 acres in all. One day the whole island was designated as an SSSI. The reseeding which the farmer wanted to do was declared to be impossible. There was an obvious loss of income and although the area under the SSSI was ultimately reduced from 1,000 to 340 acres, the loss of income as calculated by the North of Scotland College of Agriculture, which is a fairly expert body, came to £14,500 a year. The NCC offered £6,500, then £7,800 and ultimately £12,000, five years after the notification, the farmer having to pay all the costs involved.

Secondly, there is what I suppose may be called the notorious Alcock case in Aberdeenshire. In a way this is perhaps the most ironical example. A farmer who was enthusiastic about wild flowers and was doing his own thing, keeping cattle off the hill at the relevant time of year so that the orchids could grow, was so enthusiastic that he did not demur when a friend asked if he might bring someone from the NCC, which was bound to be interested in what the farmer was doing. Indeed it was. No longer was he able to do his own thing. An SSSI designation was slapped on the land with, to use his own words, "a whole list of restrictions which prohibit virtually all agricultural and most other operations on the land involved".

Of course there was an argument about compensation. I am not aware whether or not the figure has yet been settled but according to him the figure will fall well short of the one that the farmer originally suggested. In his words, "The strings attached to conservation projects can have the misfortune of turning into nooses". The case formed part of a farming programme on the Scottish radio wavelength. The other half of the programme was devoted to an experience with an SSSI in Berwickshire which had gone like a charm.

I come back to what I believe is the secret of the whole matter; namely, the approach by the NCC in the old days. As I said, I think—at least I hope—that it is only in a minority of cases that injustice is done. But one should not neglect the minority. That is why I strongly support the principle of appeals.

This amendment asks for a review of existing SSSIs. It may well be a stepping stone—I hope that it is—for a review of all future designations by the Secretary of State. As I said at Report stage, it seems to me that this is a golden opportunity for the Secretary of State for Scotland. There is a totally new set-up. Peterborough will no longer have influence. There will be the Secretary of State and all his departments—including environment and agriculture —with their Ministers working on the same corridor as himself.

I recall that when I served in that office one almost hoped that there might be a dispute because when there was a dispute one was invited into the Secretary of State's office to discuss the matter over an excellent beverage before the Secretary of State came to his decision. That is unlike what may happen here, where I can well see difficulties arising and Ministers who say, "Don't let us have this sort of thing. We shall have to go across to the Department of the Environment and argue it out".

We have the golden opportunity to take a step forward. I profoundly hope that we shall do so.

Baroness Nicol

My Lords, I shall not speak for very long on this amendment. After all, our decision was made on the matter of appeals to the Secretary of State and I am rather surprised that the debate has been reopened. I believe that review and monitoring is an essential part of any sensible SSSI programme. In fact that happens. It will be seen from the reports of the Nature Conservancy Council that SSSIs are denotified. That means that for whatever reason they are no longer suitable to maintain in that category. Therefore I do not object to the suggested review.

However, I question whether it is realistic to ask that body to complete a review in five years. When the Wildlife and Countryside Act came into force in 1981, as part of that exercise the Nature Conservancy Council had to renotify all the SSSIs that had been designated up to that time. It took nine years. That was because the resources were not available to it. There was neither the money nor the manpower to make it possible.

If the Government are saying that they will make money and manpower available to enable Scottish Natural Heritage to complete its review in five years, I should have no objection to it. Failing that, it is not a very reasonable programme to suggest. I hope that the Government will make clear in their response that they will either refuse the review, offer longer time or offer more money.

Lord Burton

My Lords, I should like to make two short points. First, I believe that there is a need for a re-designation because in many cases it has never been specified—the grounds are unknown to anyone else, so far as I can see—why an area has been designated or indeed what it is intended to protect in that particular area. I know of one SSSI which affected me. I tried my best to find out what was wanted or what was involved and could get no information. My noble friend Lord Stodart raised that point. It is important that the designation is explained carefully. One will have the co-operation of the owners in most cases when they realise that something needs protecting. That applies in Caithness at the moment, where there is a great deal of unhappiness about some of the areas specified. No one knows why an area is to be protected. I was at a very well attended meeting of a FFWAG (farming, forestry and wildlife advisory group) there. It was a well attended meeting. The NCC was supposed to tell the meeting why such a designation had been made and what was being done. It was deplorable to find that we could not get any answers from it. I think the answer was that the NCC itself did not know.

The other point which I should like to raise is that I am not quite sure whether designations under the ancient monuments legislation are involved in any way. I should have thought it rather important that any heritage body should look after those.

A particular piece of land caused great excitement because it was believed that it contained a number of circles. Having received a map I went to investigate and discovered that the Pony Club had been schooling its ponies. I am fairly confident that another recent case of a circular feature is on land where cattle have been feeding in seven metre circles. In spite of my suggestion that the council should investigate before designating, designation is to continue. Such matters should be the responsibility of our heritage body and not be left to the few good ladies of Edinburgh.

9 p.m.

Lord Grimond

My Lords, the amendment was admirably introduced and it is clear. I believe that it will appeal to your Lordships' House. I agree with the noble Lord, Lord Burton, that the areas of designation are far from clear. Far too large an area of the Highlands has been designated and therefore the whole procedure has been devalued. Surely it is essential to reconsider the situation. If any noble Lords are in doubt, that appears to be the belief of the new body. It proposes to review the procedures and is bound to review the effect on different areas. Therefore, we are merely putting into legislation directions that the new body will welcome.

It was rightly said by the mover of the amendment, the noble Lord, Lord Pearson, that scientists are extremely obstinate and never more obstinate than when they are wrong. Indeed, they are wrong three or four times out of five. The protection against that is the appeal written into the amendment. If we do not like the decision recommended by the scientists we can appeal against it. I agree that one of the great dangers is that although scientists are upright, splendid men, they are extremely pig-headed. I do not like to mention names but certain organisations contain scientists who are great friends of mine and they are obstinate almost beyond belief. They were wrong to a degree that only scientists can be wrong. Therefore, we are right in insisting that there should be protection against the decisions.

We are taking the path that the new body wishes to take and I can see no reason why the Government should resist the amendment. It is apparent that the SSSIs cannot be fixed for all time and must be reviewed. It is arguable whether this timescale is right but we cannot write SSSIs into the history of the world for ever. This is a suitable moment for insisting on review by the new body.

The Earl of Dundee

My Lords, if we believe that all SSSIs are sensibly designated, we must reject the amendment. However, during previous stages of the Bill in this House my noble friend Lord Strathclyde referred to the unsatisfactory basis upon which, until now, Scottish decisions have been made in Peterborough. Many noble Lords have given convincing examples of contradictions and absence of wisdom in previous designations. A significant proportion of existing SSSIs are satisfactory and, therefore, when they are called for reconsideration after five years they will in all probability remain so designated. I hope that that consideration will give comfort to the noble Baroness, Lady Nicol. The amendment allows the correction of the anomalies and mistakes which have already been fully drawn to our attention.

Lord Taylor of Gryfe

My Lords, this is an important amendment. It raises again the important principle that the noble Lord, Lord Grimond, mentioned in an earlier debate; that is the opportunity for review. We are not talking about reviewing the decisions of the new body but about reviewing the decisions that were made in Peterborough. The fact that the Government in their wisdom decided that the exercise should be decentralised and decisions should be made closer to the area in question is the justification for review. I believe that the new body will welcome that step because it will stamp its authority on decisions made before its existence.

The new body will have difficulty in receiving acceptance of its authority. It made an excellent public relations move when Mr. Magnus Magnusson was appointed as chairman because he is a highly respected individual. The new body must gain acceptance but because in some cases it has inherited the decisions of the Nature Conservancy Council in England it is slightly prejudiced. Therefore, it is a good idea that the new body should look at decisions after a period of five years.

We are not talking about small areas of Scotland. We are talking about 1 million hectares—that is 10 per cent. of the land surface of Scotland—which has been designated as SSSIs by the Nature Conservancy Council in Peterborough. It is right and just that we should look at those decisions because we are nearer the ground, nearer the local authority, nearer the people who find employment in the areas and, above all, we are sensitive to our responsibilities to protect our heritage and amenities. I wish to support the new body. We should give it greater authority, greater respect and greater acceptability by saying, "All right, you are starting anew. Just look at what you have inherited and find out whether it is consistent with your view of your new responsibilities".

After the last debate the Nature Conservancy Council, through the noble Earl, Lord Cranbrook, was good enough to send me the guidebook of its work in the designation of SSSIs. There is no doubt about its power and authority. Of course it notifies you that your area is to be designated and you are allowed three months in which to make representations to the council. It will then consider the matter but in the meantime your area is designated. After considering your representations as a landowner or as someone with an interest in the area it delivers the punchline, that its decision ultimately determines whether or not the notification is confirmed.

That means that it is a quango, appointed by the Secretary of State, which makes the final decision against which there is no appeal. It is that principle to which we are opposed in the amendment.

I received representations from the Highland Regional Council, which covers one of the areas most affected, as can be imagined. It is the elected representative of the people of the Highlands. I do not know the political affiliation of its members, but they point out that, it is singularly disappointing to the Regional Council that the provisions of Section 28 of the Wildlife Act should provide the power of judge and jury to the Nature Conservancy Council … Highland Region would not be so alarmed at the situation if the powers conferred on the NCC were exercised in a selective and discriminating way". Its experience does not justify support or confidence in those judgments.

Over 15 per cent. of the entire area covered by the Highland Region is now designated as SSSIs. Surely it is right and proper that we should ponder for a moment whether the uniform coverage of a whole area of Scotland should be designated as a SSSI. Is it not right that after a five-year period that designation should be examined and consideration given to whether the decisions were well made?

Local authorities have their own land use strategy studies. Is it not right that they should be brought into the picture to see whether their ideas of the development of land use in their area are consistent with the decisions of a quango? Therefore I strongly urge the House to support Amendment No. 30 as being one way of ensuring a degree of local democracy and, at the same time, giving new and added authority to the body now being set up.

Lord Renton

My Lords, I also support the amendment for reasons which have already been given. However, I ask the House to bear in mind that nothing will happen for five years. A somewhat elaborate and costly exercise which ought to take place will take place. We have already been given examples of SSSIs which are obsolete or which may have been inadvertently destroyed or damaged by climatic change. I am aware of one specific area where a two-year drought in effect destroyed vegetation which was the reason for the SSSI designation. In those circumstances, bearing in mind that the land is meanwhile sterilised, why should the owner and occupier wait for five years before something is done?

Therefore, I support the amendment and hope that it will be added to the Bill. However, I suggest to my noble friend on the Front Bench that if it is included in the Bill and goes to another place, he should also consider giving leave to the owner or occupier to apply to the SNH for a review of the specific SSSI designation that has become obsolete. The SNH should be informed that the designation interferes with legitimate alternate land use and be asked to decide whether or not the area should continue to be so designated. If SNH persists, it may be reasonable for the owner or occupier to be given the opportunity illustrated in subsections (3), (4) and (5) of the new clause, of having the matter raised and being sent to the Secretary of State.

Baroness Nicol

My Lords, before the noble Lord sits down, did I understand him to say that the SSSI designation was absolute? I wish it were so. We are constantly asking that the SSSI designation be absolute. In fact it is not. It is constantly being overturned by developers throughout the country. Therefore to say it is an absolute designation is incorrect.

Lord Renton

My Lords, as the noble Baroness has asked about that matter perhaps I may say that I feel bound to agree with her. Where sometimes there has been an inadvertent interference with the land containing the SSSI, alas, the damage has been done and it may not be possible to put the clock back.

Baroness Carnegy of Lour

My Lords, on a previous occasion I said that I was sorry that we had not progressed further on the possibility of allowing appeal by people against designation. It is important that the Government continue to consider the matter and find a way, whether a statutory or informal form of appeal, to enable people to question the designation of their specific area.

We have had many examples to show why that is true. The amendment worries me. I understand perfectly why it has been moved. It is possible to have a review within five years of all the existing designations in Scotland. I do not know what it would cost because there are many hundreds of them. I hope that my noble friend can supply that information. The review would have to consider every single one and even those about which everybody is perfectly happy. It seems an idiotic measure to impose through legislation a review of that kind.

It is possible to publish a report. But what will happen if a local authority or an owner or occupier objects and Scottish Natural Heritage continues with its view? The whole panoply of a public inquiry is opened up. Alternatively, a person has access to the Secretary of State. I expect that public inquiry will be chosen more often than the alternative. That will be enormously expensive, cumbersome and time-wasting. A very odd way around the situation has been proposed because we have not progressed any further with a system of appeals. The small farmer struggling to make a living who finds himself frustrated by designation should have a right of appeal. That is common justice. There should be a comeback.

I applaud my noble friends and the noble Lady, Lady Saltoun, for not giving in on this issue. They are quite right to pursue it. This amendment is not the answer. I hope that we shall not add it to the Bill. The provision will not work for a number of reasons which have already been given. The measure would be very time-wasting and expensive. I hope that my noble friend can say that he sees a way forward for people to have some comeback against Scottish Natural Heritage.

The reason for the change is a sad story. We have the new body because the old one was by no means always sensitive to the particular needs of Scotland. I am opposed to the proposed procedure and I cannot support the amendment.

9.15 p.m.

Lady Saltoun of Abernethy

My Lords, perhaps I misheard the noble Baroness. I think she said that the plaintiff, as it were, would probably opt for a local inquiry. The decision as to whether a local inquiry should be held is for the Secretary of State.

Lord Carmichael of Kelvingrove

My Lords, as the argument continues I find myself becoming more and more perplexed. I have discussed the issue with a number of noble Lords outside the Chamber. They are aware that it is rather a cumbersome amendment. I agree with the noble Baroness, Lady Carnegy of Lour, that if it is accepted it will lead to considerable problems. For example, the noble Lord, Lord Stodart, gave the example of a small farmer who might fight a case of this kind and who might require lengthy legal advice. He spoke in terms of £5,000 in costs. The amendment is meant for the person who can afford to go to a QC to put his case for him.

Lord Stodart of Leaston

My Lords, that is a perfectly fair point but two blacks do not make a white. The case I gave related to the island of Stroma and was one in which considerable legal costs were involved. It took five years to reach a decision. I would like to see decisions made much more quickly, as they should be if there were a proper appeals system. What the noble Lord explained has been taking place already.

Lord Carmichael of Kelvingrove

My Lords, the reason why I said that I agreed with the noble Baroness, Lady Carnegy, was that the small farmer and landowner would be disadvantaged. There are probably not many farmers who can cope with a local inquiry. Subsection (4) (b) of the new clause states: The Secretary of State shall afford any person or any representative of SNH, the owners or occupiers of the land and the local planning authority an opportunity of being heard by a person appointed by the Secretary of State for the purpose". Obviously that is going to be a long drawn-out problem. The Minister has already been asked whether he can give some idea of how many outstanding cases there are. In four instances the sites concerned have already become SSSIs. Has the Minister any idea of the resources necessary to fulfil the task? It has been mentioned in a number of contributions that even the people affected did not know why an SSSI had been designated.

The amendment would result in a bureaucratic nightmare. I have been reading the handbook. If it is still going to be used—it was certainly used in the old cases—that seems highly unsatisfactory. I look forward to hearing what the Minister has to say.

Lord Taylor of Gryfe

My Lords, the handbook from which I read covers SSSIs which have already been designated. Under this amendment we are looking at those made under the handbook.

Lord Mackie of Benshie

My Lords, perhaps the Minister will spare us his brief and simply accept the amendment.

Lord Strathclyde

My Lords, that is a kind suggestion. Unfortunately, I have a greater responsibility. I should like to examine the amendment, point out its flaws, explain why the Government are in their present position and then request my noble Friend, Lord Pearson of Rannoch to withdraw it.

The amendment contains two distinctive elements. First, subsections (1) and (2) would place a formal statutory duty on SNH to review all sites of special scientific interest which are designated at an appointed date and to publish the results of its review. Secondly, subsections (3), (4) and (5) seek to institute a right of appeal for all such SSSIs to the Secretary of State through the establishment of a hearing procedure. Many of the provisions in both parts of the amendment are, I am afraid, flawed and I suspect impractical.

The Government are not against the reviewing of sites of special scientific interest. Indeed, that has been the practice of NCC over the past nine years, as indicated by the noble Baroness, Lady Nicol. In the past decade, NCC has had to reconsider all sites notified under the 1949 Act in the light of the provisions set out in Section 28 of the Wildlife and Countryside Act 1981. It has therefore reviewed all sites and decided whether a site should be notified in its original or amended form, both in terms of the area covered, and therefore the site boundaries, and the activities which would be permitted within the site if the scientific interest was to be maintained.

This substantial renotification task is now almost complete. In Scotland, 97 per cent. of sites notified under the 1949 Act have been renotified. To undertake the review process all over again is in our view totally impractical. It is a misuse of the resources that we provide to the NCC and diverts staff effort from the more positive tasks. I also wonder how many owners and occupiers would welcome a reassessment.

Subsection (1) is also impractical as it would require SNH staff to deliver the majority of its resources to the review of sites as the amendment as drafted suggests that a review has to be completed within five years. There are also a number of technical flaws to subsections (1) and (2). I shall not go into them in detail. I am sure that the noble Lady, Lady Saltoun and my noble friend Lord Pearson accept that their drafting is far from perfect.

Perhaps I may now turn to the appeals procedure set out in subsections (3), (4) and (5). We have had two previous debates on the principles and practice of an appeals procedure. The proposal for a right of appeal, for example, appears to misunderstand the statutory procedures laid down in the Wildlife and Countryside Act 1981. Those are fundamental to the way that the system operates. I shall not repeat them as I have made this clear on previous occasions. Giving the Secretary of State the right to determine whether an SSSI should continue to be designated or revoked or amended, as subsection (5) suggests, would place him in an almost impossible situation.

Your Lordships will appreciate that the Secretary of State is the planning Minister for Scotland and in that quasi-judicial capacity has the opportunity to determine planning applications, particularly on SSSIs where the NCC or SNH object to a development proposal. If in that situation the Secretary of State has already decided that the scientific interest of the site justifies that it should be notified as an SSSI, then he is fettering his discretion to make a decision on a planning application which would undermine or affect the scientific interest of the site. In effect, he is deciding before any planning application for any type of development is made that the nature conservation status is likely to outweigh a development proposal. I therefore submit to noble Lords that the proposals for the role of the Secretary of State are fundamentally flawed.

There are also considerable practical problems with the subsections (3), (4) and (5). The right of appeal procedures which are proposed in the amendment would be costly and would require a new level of bureaucracy to make judgments on a body which has been set up by Parliament with a specific statutory duty.

I am surprised that nowhere does the amendment state on what basis representations might be made against the continuation of an SSSI. Your Lordships are well familiar with the fact that SSSIs are notified on the basis of the special scientific interest of an area. However, my understanding of subsections (3), (4) and (5) is that representations may be couched much more widely than scientific ones.

Finally, I have both in Committee and on Report indicated the new procedures which the Nature Conservancy Council for Scotland intend to operate from April of this year. Magnus Magnusson, the chairman designate of NCCS, has given a written assurance as to how he expects the new procedures to operate. As noble Lords know, I have circulated a copy of that letter and placed it in the Library. Nevertheless, perhaps noble Lords will bear with me while I quote some of the salient points which I believe to be relevant to the new style of operation of both NCCS and, in the future, Scottish Natural Heritage. In doing so, perhaps I may make the plea that we should not prejudge this new organisation. In his letter Mr. Magnusson places great stress on consultation with owners and occupiers. He says: We will be looking at ways to improve and extend the informal consultations which our staff hold at present with potential SSSI clients. We recognise that the present procedures make unusual demands on the capabilities of individual staff members to undertake this often difficult and sensitive task and we shall be considering carefully what implications this might have for the organisational structure of SNH on the ground. We should also consider whether we can alter the present nomenclature of potentially damaging operations to something more user friendly and constructive such as operations requiring consultation. I take the view that it would be best for NCCS to see what it can achieve informally during the course of the next operational year and subsequently assess whether any formal adjustment should be made in the enabling legislation to facilitate improved consultation and operational procedures at the local level. The chairman designate goes on to indicate that the regional boards which are being established by NCCS will be the first level of decision-making. He continues to say that: they are to be established in order to improve local accountability and sensitivity of administration on a whole range of environmental initiatives and casework issues including of course SSSI designation. I shall not quote more from Mr. Magnusson's letter because, of course, it is available to all noble Lords. However, I hope that I have made clear the fact that the review proposals in the amendments are inefficient, costly and technically flawed. Moreover, they would negate much of the work which has been undertaken by NCC in Scotland over the past decade.

I hope that I have fully explained the Government's position. I understand what noble Lords have said. I must now ask my noble friend Lord Pearson of Rannoch to withdraw his amendment. I hope that he and the noble Lady, Lady Saltoun, will understand that my hope for the future is very much shaped by what Mr. Magnusson says about the new organisation, Scottish Natural Heritage; namely, that it is there to work wholeheartedly with landowners and occupiers of land to preserve the heritage of Scotland.

Lord Pearson of Rannoch

My Lords, I thank my noble friend for that explanation. I too have read the letter from Magnus Magnusson. I am afraid that I do not find it convincing. We are all prepared to give him the benefit of the doubt over the future of his new organisation, but what he says about the past is that any adjustment to past SSSIs might have a demoralising effect on the staff, and so on. He feels that criticism might be perceived as being overdone.

I accept that all the subsections of the amendment may not be perfect; but I do not accept that it would necessarily be expensive to operate for the small farmer. Nevertheless, if we were to approve it, it would give your Lordships' House the chance to look at anything decided in another place on the amendment and indeed the whole area. From that point of view alone it must be worth testing the opinion of the House.

9.31 p.m.

On Question, Whether the said amendment (No. 30) shall be agreed to?

Their Lordships divided: Contents, 44; Not-Contents, 33.

Division No. 4
Acton, L. Lyell, L.
Airedale, L. Mackie of Benshie, L.
Allenby of Megiddo, V. Masham of Ilton, B.
Boardman, L. Palmer, L.
Borthwick, L. Pearson of Rannoch, L. [Teller.]
Brightman, L.
Brookeborough, V. Rankeillour, L.
Burton, L. Renton, L.
Cairns, E. Rochester, L.
Clanwilliam, E. Roxburghe, D.
Cochrane of Cults, L. Russell, E.
Craigmyle, L. Saltoun of Abernethy, Ly. [Teller.]
Dundee, E.
Elliot of Harwood, B. Soulsby of Swaffham Prior, L.
Ezra, L. Stodart of Leaston, L.
Gisborough, L. Strange, B.
Glenarthur, L. Swansea, L.
Grey, E. Taylor of Gryfe, L.
Grimond, L. Tordoff, L.
Grimston of Westbury, L. Vestey, L.
Grimthorpe, L. Wigoder, L.
Hacking, L. Woolton, E.
Kimball, L. Wynford, L.
Ampthill, L. Cavendish of Furness, L.
Arran, E. Davidson, V.
Astor, V. Dean of Beswick, L.
Belstead, L. Denham, L. [Teller.]
Blatch, B. Graham of Edmonton, L.
Blyth, L. Henley, L.
Brabazon of Tara, L. Jeffreys, L.
Brougham and Vaux, L. Jenkin of Roding, L.
Butterworth, L. Long, V. [Teller.]
Caithness, E. Nicol, B.
Campbell of Croy, L. Parry, L.
Carnegy of Lour, B. Prior, L.
Reay, L. Taylor of Blackburn, L.
Romney, E. Thomas of Gwydir, L.
Skelmersdale, L. Trumpington, B.
Strathclyde, L. Wade of Chorlton, L.
Strathmore and Kinghorne, E.

Resolved in the affirmative, and amendment agreed to accordingly.

9.38 p.m.

Clause 17 [Rights of entry and inspection]:

Lord Strathclyde moved Amendment No. 31: Leave out Clause 17.

On Question, amendment agreed to.

Clause 21 [Rights of entry and inspection]:

Lord Strathclyde moved Amendment No. 32: Leave out Clause 21.

On Question, amendment agreed to.

Lord Strathclyde moved Amendment No. 33: After Clause 23, insert the following new clause:

Rights of entry and inspection under Parts II and III

(" .—(1) Any person duly authorised in writing by a river purification authority, a water authority or a water development board may at any reasonable time enter upon any land for the purpose of—

  1. (a) exercising any power or performing any duty conferred or imposed on the authority or board or that person by virtue of Part II or III of this Act;
  2. (b) determining whether circumstances exist which require the exercise of such a power or performance of such a duty and, if so, in what manner such power or duty should be exercised or performed;
  3. (c) determining whether any provision of either of these Parts of this Act or of an instrument made by virtue of one of these Parts is being complied with; or
  4. (d) carrying out such inspections, measurements and tests on the land or of any articles, including water, on it and taking away such samples of the land or such articles as he considers appropriate for such inspections, measurements or tests.

(2) Subject to subsection (3) below, if the sheriff is satisfied that there is a reasonable ground for entry upon any land which a person is entitled to enter in pursuance of subsection (1) above and—

  1. (a) that admission to that land has been refused;
  2. (b) that such refusal is apprehended;
  3. (c) that entry upon the land was sought in an emergency;
  4. (d) that the land is unoccupied or the occupier is temporarily absent; or
  5. (e) that an application for admission to the land would defeat the object of the entry,
then the sheriff may grant a warrant authorising that person to enter the land, if necessary using such force as is reasonable in all the circumstances.

(3) Without prejudice to subsection (6) below, in any case to which paragraph (a) or (b) of subsection (2) above applies the sheriff shall not grant a warrant unless he is satisfied that a notice of the intended entry has been served on the occupier of the land not less than seven days before the demand for entry was made.

(4) A warrant issued in pursuance of this section shall continue in force until the purpose for which the entry is required has been satisfied.

(5) A person authorised to enter upon any land in pursuance of this section—

  1. (a) shall, if so required, produce evidence of his authority before he enters upon the land; and
  2. (b) may take with him on to the land such other persons and such equipment as may be necessary.

(6) Admission to any land used for residential purposes and admission with heavy equipment to any other land shall not, except—

  1. (a) in an emergency;
  2. (b) in a case where land is unoccupied; or
  3. 187
  4. (c) in a case where to serve notice of intended entry would defeat the object of the entry,
be demanded as of right in pursuance of subsection (1) above unless a notice of intended entry has been served on the occupier not less than seven days before the demand is made.

(7) A person who, in the exercise of the powers conferred on him by virtue of this section, enters upon any land which is unoccupied or from which the occupier is temporarily absent shall leave the land as effectively secured against unautharised entry as he found it.

(8) A person who wilfully obstructs any person acting in the exercise of his powers under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9) It shall he the duty of the river purification authority to compensate any person who has sustained damage by reason of—

  1. (a) the exercise by a person authorised by the authority of any powers conferred on him by virtue of this section; or
  2. (b) the failure of a person so authorised to perform the duty imposed on him by subsection (7) above,
except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person's entitlement to compensation in pursuance of this subsection or as to the amount of the compensation shall be determined by arbitration.

(10) Any reference in this section to an emergency is a reference to a case where a person requiring entry upon land has reasonable cause to believe that—

  1. (a) there is a reduction in the volume, or a deterioration in the quality, of water such as would be likely to endanger human life or health or adversely affect the viability of aquatic flora or fauna; and
  2. (b) immediate entry is necessary to verify the existence of these circumstances or to ascertain their cause or to effect a remedy.

(11) In this section "land" includes a vessel.").

On Question, amendment agreed to.

Clause 24 [Service of documents]:

Lord Strathclyde moved Amendments Nos. 34 to 36: Page 18, line 5, leave out ("premises") and insert ("land"). Page 18, line 7, leave out ("premises") and insert ("land"). Page 18, line 9, leave out ("premises appear to be or are") and insert ("land appears to be or is").

On Question, amendments agreed to.

Schedule 1 [Constitution and proceedings of Scottish Natural Heritage]:

Lord Carmichael of Kelvingrove moved Amendment No. 37: Page 20, line 17, at end insert ("shall consult such associations or bodies appearing to him to have significant expertise in management of, or knowledge about, the natural heritage of Scotland, and.").

The noble Lord said: My Lords, this amendment would give the opportunity for the quango to be a bit more democratic. Until now most quangos have been based on political patronage. This amendment seeks to ensure that the Secretary of State consults widely with knowledgeable bodies before making appointments to the Scottish Natural Heritage. This should assist in identifying the best people for these important appointments and in winning public respect for the authority of the SNH; it would also improve relations between the SNH and key partner groups.

A requirement for the Secretary of State to consult before making appointments to the board of the Countryside Commission for Scotland was contained in the Countryside (Scotland) Act 1967. To omit such a requirement from the Bill appears to be a rather backward step, which I hope the Minister will refuse to take. I beg to move.

Lord Strathclyde

My Lords, I must resist the amendment for practical and technical reasons. The practical reason is that the formulation contained in the amendment is imprecise. There is an enormous range of bodies interested in the natural heritage of Scotland, and it would be impossible for the Secretary of State ever to decide where to draw the line in consulting them, or whether he had properly fulfilled the duty imposed on him under the amendment. I can also foresee that there could be a great deal of difficulty in deciding whether a particular body had "significant" expertise about the management of the natural heritage or "significant" knowledge of it.

The technical objection is related to that uncertainty. The amendment would lay the Secretary of State open to the objection that he had not consulted every organisation or body which he ought, according to an objector, to have consulted. That situation could be used to challenge any appointment which the Secretary of State had made. The validity of those appointments would be brought into doubt as a result. That is an undesirable position.

These considerations led us to decide not to include a similar provision in the Bill. I can, however, give the noble Lord an assurance that the Secretary of State will indeed consult bodies with an interest before he makes any appointments to SNH of fills any vacancies in the board of the body. In addition, he will also consider any nominations made to him direct. I hope that that will satisfy the noble Lord.

Lord Carmichael of Kelvingrove

My Lords, before the Minister sits down can he tell us whether these problems arose under the Countryside (Scotland) Act 1967? Were there objections about consultation then? We are simply asking that the same, or close to the same, provision be included in the Bill as is in the Countryside (Scotland) Act 1967. It is seldom that an amendment is accepted for practical reasons. Usually the Minister takes it away, but here there is no chance of bringing another amendment except in another place. However, it would be interesting if he was able to answer the rather obvious question as to how the consultation worked under the old Act, or whether it worked at all.

Lord Strathclyde

My Lords, I have to tell the noble Lord that I have not the faintest idea how it operated in 1967, but I feel that I have made a fairly logical defence of my own position and the noble Lord has not refuted what I have said. Perhaps one slight reason why the 1967 Act was different was that there was a much narrower range of interests under that particular Act, and therefore it was much easier to define the number of people to be consulted. The Scottish Natural Heritage, as we have seen, has an enormously wide variety of interests. In addition, since 1967 the number of people involved in the environment and the natural heritage has expanded enormously. I think that that is rather a good reason.

Lord Carmichael of Kelvingrove

My Lords, if the Minister had told me that earlier I would have been delighted, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 38: Page 22, line 41, after ("members") insert ("or employees").

The noble Lord said: My Lords, this amendment provides additional flexibility which may be of real value to Scottish Natural Heritage. The intention appears to be to have a small, powerful executive board, perhaps comprising as few as eight members and certainly not more than 12. As drafted, this clearly limits the number of committees which may operate at any one time.

Given that there is a drive to secure much better community involvement and local accountability in the work of SNH than has existed with the Nature Conservancy Council, local committees—sometimes these may be subject based and may exist for relatively short periods—may become a commonplace modus operandi for SNH. That would be impossible if one member of each committee always had to be drawn from a pool of eight to 12 SNH board members. If an employee of SNH were able to be a member of such committees, greater flexibility would be achieved. The chairman would decide which committees employees could sit on and which committees had to include a board member. The amendment is intended to be helpful. I beg to move.

Lord Strathclyde

My Lords, the committees appointed by SNH, particularly those set up as regional boards, will play a vital role in SNH's work, especially at local level. We believe it is essential that there should be at least one member of the board of SNH on each such committee to ensure uniformity of policy and approach, together with a mechanism for reporting to the main board.

It would be entirely possible under the amendment for the member of SNH to be replaced on those committees by an employee of SNH. While SNH's employees will play an important part in the development and implementation of its policies on the natural heritage, it will not be for employees to decide what those policies ought to be. That being so, it would not be appropriate to allow a committee to be established the membership of which comprised one employee of SNH while the remainder were other varieties of non-members of SNH.

There is of course—this will, I think, be helpful to the noble Lord—nothing in the provision as it stands in the Bill at present which would prevent an employee of SNH being appointed to a committee, as employees of SNH are all within the category of non-members of SNH. But that appointment would need to be in addition to the SNH member. In this case, I can give the noble Lord his cake and he can eat it.

Lord Carmichael of Kelvingrove

My Lords, the Minister has not, of course, given me icing. As I said, the amendment is intended to be helpful. I believe that if there were too many committees and only eight members of SNH were represented on those committees, those members could be put under strain. I do not know whether the Government will take up this matter in another place. However, I must be grateful for the Minister's remarks. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7 [Further provisions regarding drought orders]:

Lord Strathclyde moved Amendments Nos. 39 and 40: Page 38, line 48, leave out ("21") and insert ("(Rights of entry and inspection under Parts II and III)"). Page 39, line 6, leave out ("21(2)") and insert ("(Rights of entry and inspection under Parts II and III)(2)").

The noble Lord said: My Lords, I beg to move Amendments Nos. 39 and 40 en bloc.

On Question, amendments agreed to.

Schedule 10 [Miscellaneous Amendments]:

[Amendment No. 41 not moved.]

Schedule 11 [Repeals]:

Lord Strathclyde moved Amendment No. 42:

Page 47, line 5, at end insert:

("1965 c. 74. Superannuation Act 1965. In section 39(1), in paragraph 7 the words "The Nature Conservancy Council for Scotland.")

On Question, amendment agreed to.

Amendment (privilege) made.

Lord Strathclyde

My Lords, I beg to move, That the Bill do now pass.

The Natural Heritage (Scotland) Bill is designed to establish SNH by merging the Nature Conservancy Council for Scotland and the Countryside Commission for Scotland. This is an administrative change to provide the new body's basic aims and purposes, set down its general functions and responsibilities and update particular powers in the present countryside legislation. It also ensures that the new agency continues to operate under all the relevant Great Britain nature conservation legislation, including Part VII of the Environmental Protection Act 1990.

During the course of the passage of the Bill through this House we have considered its terms very carefully. As a result of our very useful debates amendments have been made. We have extended the balance in duty in Clause 3; clarified in Clause 4 the read-across from the 1990 Act; revised the powers of entry in Clause 6; and have given SNH the power to make access agreements and orders. We have also had illuminating debates regarding the Government's intentions, on the meaning of sustainability, on powers regarding red deer and on the operation of the SSSI system.

Although the parts of the Bill dealing with water resources have perhaps attracted less attention, they are nevertheless of importance dealing as they do with subjects such as drought and the control of extractions for irrigation purposes. Various minor and technical amendments have been made to Parts II and III.

I am confident that the Bill leaves the House in an improved state, albeit that the Government have sought to defend their position and the House has chosen not to accept that advice. However, this Bill now goes to another place and I am sure that when it returns it will be in an even better state. I am grateful to everyone who has contributed to our discussions, and I beg to move that the Bill do now pass.

Moved, That the Bill do now pass—(Lord Strathclyde.)

Lord Carmichael of Kelvingrove

My Lords, I thank the Minister. I had not realised that he had conceded as much in the Bill as he read out. I think that was the one part he read slowly. It has been an interesting Bill, but clearly there are parts where he is not going to get agreement in the House. I just wonder how the Government will handle some of the problems when dealing with the amendments we have made. We owe them a great deal concerning this Bill, partly due to the composition of your Lordships' House, and I hope that when the Bill goes to another place it will be as well discussed as it has been here.

Lord Campbell of Croy

My Lords, this Bill supports the reorganisation to be brought about by the Environmental Protection Act of the last Session. I am glad that the Government have introduced this Bill at the beginning of this Session and I hope that it will become law in the summer, no doubt after full debates in another place on local communities, red deer and other points which we have left to them to look at again.

I concern myself with the parent Bill. I was a member of the Carver Committee which started work over a year ago. Our recommendations in that committee were accepted almost in toto by the Government. A suggestion of mine to change the name of the Scottish Development Department, which I advocated at least twice in speeches in this House, has now been accepted. Therefore, I feel that I must take this opportunity of congratulating the Government and thanking them because earlier this month they announced that the Scottish Development Department will in future be called the Scottish Office Environment Department. That will help the public in that the department's main functions will be clearer and also that it carries out in Scotland what the Department of the Environment does in England, including housing and local government.

The Environmental Protection Act and this Bill will lead to consultations and decisions taking place much nearer to the sites and areas concerned than in the past. I hope that this will promote confidence among those who reside in those areas who feel that their lives will be affected and that it will also lead to co-operation in preserving valuable habitats and natural treasures in our countryside.

Lady Saltoun of Abernethy

My Lords, I thank very warmly the noble Lord, Lord Strathclyde, for his unfailing help and courtesy throughout the passage of the Bill. I thank him for what he has conceded and commiserate with him for what has been wrung out of him in Divisions. I hope that amendments will be produced in another place to introduce an appeal mechanism against the notification of SSSIs.

Lord Pearson of Rannoch

My Lords, I too should like to join in thanking my noble friend Lord Strathclyde for the extreme courtesy he has shown both on and off stage. I hope that we may look forward to further discussions on the Bill in future.

On Question, Bill passed, and sent to the Commons.