Lords Sitting of 19 October 1995

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Norwich.): The LORD CHANCELLOR on the Woolsack.

Overseas Development Administration
Lord Judd Lord Judd asked Her Majesty's Government:
What are the implications for the long-term overseas development programmes of the ODA inherent in the increasing short-term demands for immediate relief assistance.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the short-term demands for immediate relief assistance have levelled off. While it is not possible to predict the requirement over the next few years, I am confident that we will continue to provide effective help both for these demands and for long-term development programmes.
Lord Judd: My Lords, does the Minister agree that short-term demands have made serious erosions into long-term development work? That is paradoxical because the long-term development work prevents or at least inhibits short-term disasters. Does she further agree that the real problem is that the aid programme has been steadily falling, as a percentage of GNP, to little more than 0.3 per cent. of GNP whereas it was standing at 0.51 per cent. when the Government came to office? Has she seen the recent public opinion poll which suggests that 79 per cent. of the British public are in favour of maintaining or increasing the aid programme and that only 10 per cent. favour cutting it? Can she assure us that the Chancellor is not a member of the 10 per cent.?
Baroness Chalker of Wallasey: My Lords, the noble Lord knows full well that I believe that money well spent on long-term development work can help to avert or at least to minimise short-term disasters, but it obviously cannot stop them all. Long-term development work is not suffering as a result of the short-term disaster relief we have to give. The noble Lord not unexpectedly, and slightly ingeniously, tried to tempt me into provinces on which I will not engage at the moment. He knows that I am unable to prejudge the public expenditure survey outcome. However, I have to tell him what the facts are. Over the past eight years there has been an increase in real terms of more than 20 per cent. We have actually been getting better value for money out of our spending. There is no doubt that that is why public opinion is very supportive of the aid programme; and I made perfectly sure in a room in your Lordships' House the other night that the Chancellor knew about it.
Lord Judd: My Lords, can the noble Baroness give an assurance that the aid programme will not be cut?
Lord Shaw of Northstead: My Lords, is my noble friend aware that we hope that she will continue with the successful way in which she has sought to make the objectives of these schemes clearly definable and at the same time attach to them clear contractual obligations to ensure that the best value for money is given to those who are scheduled to receive that help? In that way the British taxpayer gets value for money.
Baroness Chalker of Wallasey: My Lords, I am most grateful to my noble friend. Our philosophy at the ODA has always been to help people in the developing countries to help themselves. We have strict controls on our spending. I certainly intend to see that our contractual obligations are fully carried out and that no one ever takes money from the British taxpayer except for very good and positive reasons.
Lord Redesdale: My Lords, in view of the fact that the aid budget is under increasing pressure from donations to the multilateral budget, can the Minister say at what point the bilateral budget will be ring-fenced to some degree, as any cuts would hit the bilateral budget?
Baroness Chalker of Wallasey: My Lords, the noble Lord has been long enough in this game to know full well that I cannot give him an answer about ring-fencing, any more than I can give the noble Lord, Lord Judd, an answer about the level of the aid budget.
Viscount Waverley: My Lords, may I draw the Minister's attention to the short-term real difficulties of the UNHCR in the Great Lakes region?
Baroness Chalker of Wallasey: My Lords, I had a meeting with the vice-president of Rwanda just before lunch today. I can assure the noble Viscount that I am probably even more aware than he is of the problems in Rwanda and Burundi. The UK assistance to Rwanda has been more than £93 million since April of last year. Although it was not one of the territories with which we were closely associated, Britain is extremely well valued there. We are constantly asked for more help. We give what we can. But it is a country which has a francophone base to all its systems and the conversion to anglophone systems will take a very long time. We do all we can to help.
Lord Ashley of Stoke: My Lords, the noble Baroness seemed confident that there has been a levelling out, as she called it, of short-term emergencies. However, does she agree that there can be no guarantee that there will be no further short-term emergencies? If some do arise, can she assure the House that there will be additional funds for the long-term projects? Can she also say why she is so sanguine about the payments made to long-term projects in view of the short-term difficulties that have been encountered in the Soviet Union and Eastern Europe? Does that mean that additional funds have been forthcoming for those things?
Baroness Chalker of Wallasey: My Lords, there can be no guarantee, particularly where one is dealing with the effects of bad weather conditions. In recent weeks we have been deeply engaged in Montserrat, in Manila in the Philippines and even in Burma. We have been

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dealing with dengue fever in Latin America and with a number of other issues which probably have not even hit the British press. But we are prepared for that. We make provision for it. Where necessary, as in the case of the fleeing of the Kurds in northern Iraq, additional funds are forthcoming. We try to prevent where we can and to be prepared to deal where we cannot prevent.
Lord Judd: My Lords, does the Minister accept that we were all impressed with what the Foreign Secretary said on 12th September? He said:
"For ethical reasons, for reasons of enlightened self-interest, and because it is one of those things we happen to be good at, overseas aid will be a very important priority and something which I know we will all want to build on".
Having noted that, can the Minister assure us that she will halt any further decline in the aid programme as a percentage of our gross national product?
Baroness Chalker of Wallasey: My Lords, the noble Lord knows full well that I alone cannot give him that assurance. What I can do is point out to him that according to the OECD our aid is above the average for all donors. We continue to get the best reports from the OECD about our aid. My right honourable friend the Foreign Secretary was absolutely right in what he said and that has been taken note of by all my colleagues.
Lord Stoddart of Swindon: My Lords, can the noble Baroness say what proportion of our aid budget is spent through the European Community? Does she believe that that money is spent as well as if it were spent by the British Government directly?
Baroness Chalker of Wallasey: My Lords, the way in which the European Community is spending our resources is improving all the time. We have made sure that that is so by making available to the European Commission expert advisers from British stock who know exactly what they are doing and how to improve conditions. It is perfectly true to say that the amount is increasing all the time, as the noble Lord already knows, and that we are not in any way going to relax our grip on the quality we expect from the European Community for the resources that we contribute to its programmes.

Church Bells: VAT Liability
3.10 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they will now reverse their decision to impose VAT on church bells.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, certain work to church bells has been standard rated since 1973. The VAT liability depends on the facts and circumstances of the particular work.
Lord Boyd-Carpenter: My Lords, as this tax has not been levied on church bells for years, can my noble friend explain why quite recently it has been decided to impose it? Does my noble friend agree that the revenue obtained is absolutely trivial and that the difficulty and
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embarrassment, particularly for those who have to pay for the maintenance of small churches, is very serious indeed and giving rise to very deep feelings?
Lord Mackay of Ardbrecknish: My Lords, the rules as regards listed buildings were clarified in a change to the law effective from 1st March this year contained in a statutory instrument. Some months after that Customs HQ discovered that there was a rather over-liberal interpretation being placed on the rules concerning one particular bell foundry. Recently, Customs have met representatives of the Church and of the church bell industry. We are discussing with them and other groups concerned the whole problem of listed buildings. We are working towards a set of principles to be followed when deciding the VAT liability for work on listed buildings, which obviously includes bells in listed churches.
Lord Bruce of Donington: My Lords, can the noble Lord inform the House whether our fellow member states in Europe are liable for the same tax on their bells under the sixth VAT directive? If that is the case, does he envisage certain difficulties arising in the city of Rome? Before this matter is finalised, will the noble Lord give the House an assurance that he will take into account the views of one of the country's leading campanologists, namely, the noble and learned Lord, Lord Hailsham of Saint Marylebone, who is well skilled in the ringing of bells?
Lord Hailsham of Saint Marylebone: But not in church!
Lord Mackay of Ardbrecknish: My Lords, I say to the noble Lord, Lord Bruce of Donington, that I realised that there would be some peals of laughter during the course of this exchange. Introducing my noble and learned friend Lord Hailsham of Saint Marylebone is going even further than I anticipated when trying to assess the direction this Question would take. As regards the serious matter of the sixth directive, everyone is subject to its rules. It fully safeguards our position and that of all member states concerning the existing position of their VAT rates. For example, those items which we have zero-rated will continue to be so rated. The noble Lord asks about Rome. As that city is in Italy, I can say that in that country there is a reduced rate of VAT of 4 per cent. on buildings. That can be continued for exactly the same reason as we can continue with our reduced rates. However, neither we nor any other member state can alter the way in which these reduced rates are dealt with without the agreement of all our colleagues.
Baroness Cox: My Lords, I declare my interest as a very humble campanologist. Is my noble friend aware that the ancient art and science of bell ringing is a tradition unique to this country? Is he aware that many people regard it as a precious tradition and that everything should be done to help preserve it? Therefore, can my noble friend accept that the openness of his reply as regards the current situation may be welcomed by the campanologist fraternity? Can he confirm that the current exemptions on new bells and the fitting of new bell frames will remain in place?
Lord Mackay of Ardbrecknish: My Lords, I can say that we appreciate the point made by my noble friend. Certainly, in England, the tradition of hell ringing is a long and honourable one. It is one of the joys of the English countryside. It may be something like piped bands. A field or two between one and the source of the sound can actually improve it. It is an important tradition and we accept that. In order to allow for existing commitments and fund raising to continue, the Customs have made a concession to delay the implementation of any changes to VAT liability until January 1996 and to allow two years for orders placed by then to be commenced. Guidance will be widely publicised.
The Lord Bishop of Norwich: My Lords, is the Minister aware that church bells cannot ring unless church towers are kept in good repair? Is he further aware that that is made extremely difficult for us because we pay to the Government in VAT on church repairs more than twice the amount of money we receive from the Government through English Heritage? Is the Minister also aware that an enormous number of people of all political persuasions and none—not least in this House—regard the situation as little short of scandalous?
Lord Mackay of Ardbrecknish: My Lords, I understand from the debate to which I replied earlier in the year that the right reverend Prelate and others share that feeling. I have to say to him that I do not believe that the Church can be excused its responsibility to pay its share of taxes just as everyone else and every other organisation have to do. In conjunction with English Heritage we have ensured that £104 million goes to that body as government grant-in-aid and that £10 million of it is channelled to historic churches and another £4 million to cathedrals. We believe that that is the correct way to go about the matter. If it is a listed church and what is taking place is defined as "alterations", such costs are not liable to VAT.
Lord Eatwell: My Lords, does the Minister agree that to accede to the request of the noble Lord, Lord Boyd-Carpenter, for a tax cut, however worthy, would be inconsistent with the Government's declared goal of cutting government borrowing, especially at a time when it is running at a higher level than last year?
Lord Mackay of Ardbrecknish: My Lords, we have certainly got quite a long way away from the original Question about bells. I am surprised that the noble Lord, Lord Eatwell, could not think of a question about bells and had to divert from that subject. This Government are, and always have been, very keen to make sure that we match our spending and taxing. One of the firm objects of the Government is to keep borrowing and spending under control. As regards spending, I hope that we can have the support of the Opposition when we come to some of the things we have to do to control spending. However, in the legislation which I have brought to your Lordships' House this Session I have not noticed that support.
Baroness Platt of Writtle: My Lords, my noble friend has just mentioned the discussions which are to take place this year. He also mentioned alterations and
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repairs. Is my noble friend going to take part in those discussions? Does he agree that it is more important in the case of a church that it should be kept in repair than that there should be alterations? Will that question be raised in the discussions which are to take place?
Lord Mackay of Ardbrecknish: My Lords, part of the discussion is related to the difference between alterations and repairs and maintenance. In fact, the statutory instrument to which I referred earlier tries to clarify that along with the recent judgment of the High Court in the case of the Windflower Housing Association, which ruled that an alteration resulting from repair and maintenance works did not qualify for zero rating. Between that judgment and the redefinitions in the statutory instrument, we hope to be able to make clearer the difference between alterations and repairs and maintenance.

Hopscotch Asian Women's Centre
3.18 p.m.
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
Whether they will now formally apologise to the Hopscotch Asian Women's Centre for the recent comments made at the Conservative Party conference by the Minister without Portfolio.
Baroness Miller of Hendon: My Lords, the Minister without Portfolio is dealing with this matter himself.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Baroness for that slightly obscure Answer. Does she mean that the Government associate themselves with the Minister's comments and their tenor? If that is so, will she please say so openly? If that is not so, will she indicate that the Government are prepared to apologise for the Minister, not only to Camden Council, which was the original object of the attack, but also to Save the Children Fund; to the Home Office, which increased the grant; to the Bangladeshi community, and indeed to the President of the Save the Children Fund, Her Royal Highness the Princess Royal?
Baroness Miller of Hendon: My Lords, the noble Lord has presumably not appreciated the fact that those remarks were made by the Conservative Party Chairman at the Conservative Party conference. He made them as a Chairman of the Conservative Party. It is right that the noble Lord should know that the organisation concerned has not sought an apology.
Baroness Jeger: My Lords, would it be possible for the noble Baroness to convey, on behalf of many of us in this House, the message that it might be educational and courteous if the chairman, who is also a member of the Cabinet, were to pay a visit to that organisation, following the example of the Princess Royal? Surely that is not beneath the understanding of the Minister concerned.
Baroness Miller of Hendon: My Lords, that is a matter for the Minister without Portfolio. As I said, he is dealing with the matter himself.
Lord Harris of Greenwich: My Lords, is not the noble Baroness aware that a member of the Cabinet has abused a local authority and an organisation which is doing extremely valuable social work? Is it not appropriate that, through her, he apologises to Parliament and to the organisations concerned, which, as the noble Baroness indicated, have behaved with remarkable restraint? Is it impossible for any member of the Government ever to offer an apology when they make such a ludicrous statement as that made by Dr. Mawhinney?
Baroness Miller of Hendon: My Lords, the chairman was making the point that Labour local authorities often—in fact nearly always—put political correctness before common sense. If the noble Lord wants examples of that, I can write to him with reams and reams of such examples.
Lord Campbell of Alloway: My Lords, in view in particular of what the noble Lord, Lord Harris of Greenwich, has just said, if it is that the Government should apologise, is this really the forum in which it is appropriate to seek any such apology?
Baroness Miller of Hendon: My Lords, obviously I am just here to answer the Question.
Lord Merlyn-Rees: My Lords, was the Home Secretary's decision to fund or to grant aid to the Hopscotch Asian Women's Centre an operational or a policy decision?
Baroness Miller of Hendon: My Lords, it was a supportive decision. The Government have made it clear that they support the work carried out by the Hopscotch Asian Women's Centre in providing training, education and childcare facilities for Asian women, and have provided, and are committed to providing, more substantial financial support to enable it to continue its work.
Baroness Seccombe: My Lords, does the Minister agree that it is, of course, regrettable if offence has been caused to those who are involved in that worthwhile project, but because Labour-controlled local authorities so often seem to give financial support to what perhaps I may call "eccentric" projects anything can be believed?
Baroness Miller of Hendon: My Lords, I must agree with my noble friend.
Lord Williams of Elvel: My Lords, the noble Baroness keeps on referring to "the Chairman of the Conservative Party", but the Chairman of the Conservative Party can be anybody. My Question referred to a Minister without Portfolio who is a Cabinet Minister. Do the Government accept responsibility for the tone of those comments by a Cabinet Minister or do they not?
Baroness Miller of Hendon: My Lords, the Minister without Portfolio was speaking at a Conservative Party conference in his capacity as the party chairman. All sorts of things are said at conferences. The noble Lord, Lord Monkswell, was there and knows that it was an excellent conference. Perhaps we shall be able to welcome him onto our Benches.

Cameroon
3.24 p.m.
Lord Rea Lord Rea asked Her Majesty's Government:
Whether, in view of the announcement on 16th October that the Republic of Cameroon is to join the Commonwealth, they are satisfied that it has complied fully with the requirements of the Harare Commonwealth Declaration concerning democracy, human rights and good governance, particularly with regard to its Anglophone community.
Baroness Chalker of Wallasey: My Lords, we welcomed the announcement by the Commonwealth Secretary General on 16th October, We share the view of our partners in the Commonwealth, based on the report of the Eminent Persons Mission, that sufficient progress has been made in Cameroon, consistent with the principles of the Harare Declaration, over the past five years. The decision in favour of membership has been welcomed by the vast majority of people throughout Cameroon.
Lord Rea: My Lords, I thank the Minister for that Answer which was largely predictable. Is it not a rather strange paradox that Nigeria and Kenya should be roundly and correctly condemned for their human rights violations, with even the suggestion that Nigeria should be expelled from the Commonwealth until it restores civilian rule and the rule of law, while the Republic of Cameroon, which has an appalling human rights record—the Minister will surely agree with that statement if she reads the annual report of Amnesty International—and a very bad history of electoral fraud, should be invited to join the Commonwealth just when those other countries are being condemned? Can leopards change their spots so quickly? Would it not have been better, as in South Africa, to have seen an internationally monitored, free and fair election take place in Cameroon before admitting it to the Commonwealth?
Baroness Chalker of Wallasey: My Lords, the whole question of good governance in Commonwealth and non-Commonwealth countries is a matter of continuing concern. However, it is quite clear that the Eminent Persons Mission, which was so outstandingly led by my noble friend Lord Carlisle of Bucklow, found that real progress had been made over the past five years. Since the requirement on Cameroon set at the Larnaca Commonwealth Conference was that Cameroon should have made significant progress before the matter was discussed again, and given that Cameroon first applied to join the Commonwealth in 1989, I am not surprised at the decision, which was supported by members of the Commonwealth, because the process gains pace all the time. Indeed, the Cameroon Government are funding their own national commission on human rights and freedoms and are inviting monitors to help them with it.
Viscount Montgomery of Alamein: My Lords, can my noble friend say whether the admission to the Commonwealth of countries with slightly dubious credentials will impose any financial burden on the United Kingdom?
Baroness Chalker of Wallasey: My Lords, there will be no further financial burden as a result of their joining. Other members of the Commonwealth may perhaps give Cameroon the sort of support which we have been giving in a small way for some considerable time.
Lord Avebury: My Lords, how does anybody know how the Eminent Persons Mission reached its conclusions when the report was not published? Is it not a fact that the group inquired into four particular matters: the postponement of local elections; the appointment of ambassadors of southern Cameroon origin to Anglophone countries such as Nigeria and the United Kingdom; the publication of the annual reports of the government-appointed human rights commission; and the mechanisms for accommodating the declared views of people of the southern Cameroon? Can the Minister say in what respect progress has been made on any of those four issues?
Baroness Chalker of Wallasey: My Lords, to the best of my knowledge the Eminent Persons Mission went into all those matters and others besides. The democratic process in Cameroon requires that country to address a number of areas still further. That is what the Commonwealth mission highlighted. Those areas include further constitutional reform, local elections, press freedoms, human rights and the independence of the judiciary. In July this year the President of Cameroon said that he hoped to hold local elections before the end of this year or soon after and that the draft constitution would be presented soon. Therefore, there is progress, but we shall continue to keep up the pressure on Cameroon, together with our Commonwealth partners, to make sure that the reforms take place.
Lord Carlisle of Bucklow: My Lords, as one of the members—but certainly not the leader of the Commonwealth mission, which was led by Dr. Kamal Hossain from Bangladesh—invited to Cameroon on behalf of the Secretary General to report on the current situation relating to Cameroon's application for membership of the Commonwealth, may I ask my noble friend whether she would agree that it is the Anglophone community, who claim to feel marginalised and discriminated against by the present Cameroon Government, who would achieve the greatest benefit from Cameroon's entry into the Commonwealth, although I accept that some of the evidence that we received, particularly from those who claimed to speak on behalf of the peoples of southern Cameroon, was strongly opposed to Cameroon's entry at this time?
Baroness Chalker of Wallasey: My Lords, I am most grateful to my noble friend not only for giving us that information but for correcting my error. I meant to say that he was a leading member rather than the leader of the Eminent Persons Group. What is important is that, although some Anglophone politicians did, as he said, oppose membership on a timing basis, we know that they are not opposed to membership in principle. We believe that their tactics were for purely local political reasons. Of course we know of the demands for greater regional autonomy which are often being made, and not only by the Anglophone provinces. I hope that the
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Cameroon Government will take action on the constitutional reform to address those concerns. I shall be pleased to take up this matter with President Biya at the Commonwealth conference.
Lord Archer of Sandwell: My Lords, has the Minister read the report of the UN Human Rights Committee of only last year? Is she saying that when a country applies to join the Commonwealth the country's human rights record is of minor relevance only? If not, how much worse than the record of the Cameroon would it have to be to justify a rejection?
Baroness Chalker of Wallasey: My Lords, as one who has taken up the issue of human rights in the Cameroon over a period of 10 years, I can only say that real progress has been made. I have been to many parts of Cameroon, and I have seen the changes that are beginning to take place. I made it clear in answer to an earlier question that one of the issues which the Commonwealth mission declared must be followed up, and which will be monitored by the Commonwealth, is human rights, because the situation is by no means yet good enough. Much of the evidence put to a number of the previous inquiries dated back some time. The more recent evidence is very much better. I agree with the noble and learned Lord—I believe that he knows this already—that adherence to human rights, whether it be in Cameroon, Kenya, Nigeria, The Gambia or anywhere else, will be a matter of concern for all members of the Commonwealth and something upon which we must take a very firm stand.

Business of the House
3.32 p.m.
Lord Strathclyde: My Lords, on behalf of my noble friend the Leader of the House I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 38 (Arrangement of the Order Paper) be dispensed with on Wednesday next for the purpose of taking the Third Readings of the Employment Rights Bill [H.L.], the Industrial Tribunals Bill [H.L.] and the Gas Bill before the motion standing in the name of the Lord Lewis of Newnham.—(Lord Strathclyde.)
On Question, Motion agreed to.

Relationship between Central and Local Government: Select Committee
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to consider the relationship between central government and local authorities in Great Britain; and, in particular, to consider—
(1) the balance in that relationship between the powers exercised at central and local level;
(2) the effect of that relationship on local authorities' activities, particularly as regulator, service provider and community leader;
(3) the need for regulation of local authorities as a means of ensuring appropriate standards of service and value for money, and the forms such regulation should take;
(4) the financial relationship between central government and local authorities including the extent to which financial independence for local authorities is desirable and practicable;
and that, as proposed by the Committee of Selection, the following Lords be named of the Committee—

L. Beloff,

L. Dubs,

B. Hamwee,

L. Hunt of Tanworth (Chairman),

E. Kintore,

B. Perry of Southwark,

L. Plant of Highfield,

B. Platt of Writtle,

L. Stoddart of Swindon,

L. Tope,

L. Wade of Chorlton.

That the Committee have power to adjourn from place to place;
That the Minutes of Evidence taken before the Committee from time to time be printed and, if the Committee think fit, be delivered out;
That the Committee have power to appoint Specialist Advisers;
That the Committee do meet on Wednesday, 25th October at half-past ten o'clock.—(The Chairman of Committees.)
On Question, Motion agreed to.

Town and Country Planning (Costs of Inquiries etc.) Bill
3.33 p.m.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Costs of holding certain inquiries etc.]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 1:
Page 1, line 8, after ("applies") insert (", subject to the provisions of section (Regulations.) of the Town and Country Planning (Costs of Inquiries etc.) Act 1995,").
The noble Lord said: I beg to move the amendment standing in my name and that of the noble Baroness, Lady Hamwee. It may be for the convenience of the Committee if I speak also to Amendment No. 3.
The Committee will be aware that the Delegated Powers Scrutiny Committee of your Lordships' House has looked at the Bill and has made what I would regard as one significant comment. We are here dealing with the transitional powers between the time the Bill receives the Royal Assent and the time that regulations are passed by your Lordships and another place. During that period the sums payable to the Secretary of State are determined under Clause 1(2) or (3) in England and Wales. The position is the same in Scotland under Clause 3(5).
When the transitional period was debated in another place an undertaking was given by the Minister on 17th May to ensure that the normal consultation arrangements with regard to those regulations should be pursued as soon as possible. I received a letter from the Minister, to whom I am most grateful, on 6th October, saying that there was a draft regulation (a copy of which he enclosed) which was now going out to consultation.
The difficulty, in my view, is that it does not respond to the problem posed by the Delegated Powers Scrutiny Committee. I should like to quote, if the Committee will allow me, from the 12th report from that committee, page 2 paragraph 8 which says:
"We nevertheless brought to the attention of the House the absence of any provision limiting that gap".
Perhaps I may put a gloss on what "that gap" means. It means the gap between Royal Assent to the Bill and the regulations being authorised and approved by both Houses of Parliament. The committee notes the Minister's statement during the Second Reading debate that,
"my right honourable friend will lay regulations in Parliament and bring them into force subject to parliamentary process, as soon as practicable after Royal Assent to the Bill".
The Delegated Powers Scrutiny Committee goes on to say:
"The House may be satisfied with this undertaking to keep the transitional period to a minimum, although the House may wish consultation on the proposed regulations to begin while the Bill is still proceeding through Parliament".
I quote that sentence because Members of the Committee will be aware that I support the Delegated Powers Scrutiny Committee in its view, but I wish to go rather further. It seems to me in the light of what the Minister said in another place in Standing Committee on 17th May, and in the light of the letter I received from the noble Earl on 6th October, that not much progress had been made.
Indeed, we now learn that the intention still is to lay regulations in Parliament and bring them into force, subject to parliamentary process, as soon as practical after Royal Assent to the Bill, but that the regulations are still out for consultation, or I assume that they are still out for consultation.
It seems to us that this is too long a transitional gap for the simple reason that the Bill authorises the Secretary of State to recoup all expenses that may be incurred in the intervening period without local authorities being aware from the regulations what those expenses might be. That is the problem. So the amendment is designed to get the Government to make a move on it. They ought, after all, by now to be aware

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of what they wish to charge. They should be aware of the argument in favour of charging, and they should have consulted by now after 17th May. Goodness knows, that has been long enough. They should have proceeded with the process of consultation.
My amendment is quite simple, although technically perhaps slightly complex. It seeks to ensure that within two months of Royal Assent the Government will have produced these regulations and that the time limit for the transitional period—the guillotine—falls there. If there are good reasons why there should be an extension to the transitional period in which local authorities remain in total uncertainty about what the Government propose to do, my Amendment No. 3, subsection (2), allows for that. It allows the Government to reactivate the procedure under the Bill by affirmative resolution; in other words, if they do not meet the deadline, they have to come back to your Lordships and to another place and say, "We have not been able to meet the deadline for this, that and the other reason". It will be for another place and your Lordships to decide whether those reasons are good enough.
At this point we touch on the problem of retrospection. But we only touch on it because we shall come to retrospection when we discuss future clauses of the Bill. What is retrospective about the Government's proposal is that there is no time limit on when they should produce the regulations which allow local authorities to be certain as at Royal Assent of the Bill about how much they will have to pay. The Government can say that parliamentary procedure is such that they cannot introduce it for one, two, three or four years or whatever.
I do not doubt the noble Earl's good faith in what he wrote to me and I do not doubt the Minister's good faith in what he said to the Standing Committee in another place. However, in order to respond to the concerns of the Delegated Powers Scrutiny Committee and to the question of how far the Government should be responsible to Parliament for getting on with the business that they have set, there should be a two-month time limit after Royal Assent within which they should lay the regulations and properly deal with them. Otherwise, they will have to come back to your Lordships and explain why they have not done so. In that spirit, I beg to move.
Baroness Hamwee: I have added my name to the amendment, sharing the anxiety of the noble Lord, Lord Williams. It is sad that so often it seems to be a matter for the Opposition to raise points to which our attention has been drawn by the Delegated Powers Scrutiny Committee. It might be more appropriate for the Government to take points on board and to come forward with amendments rather than leaving the Opposition to do so.
The committee drew our attention to the fact that the interim arrangement could remain in force indefinitely. Although the matter may not be world shaking, it is not unimportant. At the beginning of this month the Government indicated that they would shortly be circulating their proposals to local authority associations, the Royal Town Planning Institute and the Royal Institution of Chartered Surveyors and asking for
832
comments. No doubt the Minister will tell us whether that consultation has started. I hope that he will not take the protests coming from these and the Labour Benches as any kind of suggestion that the consultation period should be short. Rather, our protest is that the consultation should have happened some time ago. I hope that the Government will give the bodies a reasonable opportunity to respond. I support the amendment.
3.45 p.m.
Earl Ferrers: I am grateful to the noble Lord, Lord Williams of Elvel, for explaining his anxieties. I do not believe that there is all that much between us. The noble Baroness, Lady Hamwee, asked, "Why should it be up to the Opposition to produce amendments? Why can't the Government produce amendments?". The answer is that the Government do not believe that it is necessary because we believe that what is in the Bill is perfectly correct and adequate.
The noble Lord's real anxiety, which was repeated by the noble Baroness, is that as the matter stands it is possible for the Government to do nothing and therefore local authorities will not know where they are. The Government do not intend to do nothing, otherwise we would not have put the provision in the Bill. It is in our interests and the interests of everyone, and it is the Government's intention to lay these regulations before Parliament as soon as possible.
The noble Lord, Lord Williams, said that the local authorities will want to know what is happening and to be consulted. That is perfectly true and we intend to consult them. Indeed, they already have the draft regulations so that they know what is happening. The noble Lord also said that local authorities will want to know what the charges are. The standard amount is likely to be £340 per day in England.
The proposed regulations about which consultation is taking place are likely to be laid before Parliament in January. The noble Baroness, Lady Hamwee, said, "We want them to be done quickly". On the other hand, she said, "Take plenty of time over them because we want to be able to consult". I hope that we have been able to strike the right balance. Of course, there should be time for consultation, and that is happening. By the time we reach January, which is not far off, everyone should know where they are. Until then the charges will be made on the previous basis. All the authorities which held inquiries already know what the charges are. There is no doubt about them. Those are the charges which would be authorised by Clause 1(2).
The noble Lord, Lord Williams, said, "Let us have two months and if the Government do not produce regulations within that time they must come back to Parliament again". That is being slightly excessive when one is legislating. I have given the assurance that consultation is taking place and I have given an assurance about when we expect to lay the regulations. Therefore, it would be unfortunate to burden the legislative statute book with something that is unnecessary.
Lord Williams of Elvel: I am grateful to the noble Earl for what he said. I hope that he will not think me discourteous if I say that on many occasions I have heard the Government say that they intend to bring forward this, that and the other when parliamentary time permits or in a specific month. I hope that the noble Earl will not think me discourteous if I say too that, although I accept what the noble Baroness said, I believe that the consultation period should have started when the Minister in another place said, "We intend to start the consultation period". I know that we have been on holiday in very pleasant places but it would have been better had that happened.
As regards the £340, that is in the draft order but it does not necessarily mean that it will be in the final order. The draft order can be prayed against and changed by any government between now and January, February, March, April, May or whenever the Government get round to meeting the commitment to introduce it when parliamentary time permits.
My fundamental point is that I believe that the Committee should support the view of the Delegated Powers Scrutiny Committee, even if it means that a little extra time is spent on affirmative procedure. I believe that we should adopt the proposal.
Earl Ferrers: Perhaps I may make one comment. The noble Lord was slightly unfair when he said that we have heard Ministers say that we will do this, that and the other when parliamentary time permits. I agree that that expression is often used when governments want to do something but have to find a legislative slot. It is very different from saying, "We will introduce regulations. We are in the process of consultation and we anticipate producing the regulations (which is delegated secondary legislation) in about January". Therefore, I do not believe that the noble Lord's argument runs fairly.
The noble Lord, Lord Williams, says that the Government are giving a figure of £340. Earlier, he wanted to know what the figure was and I told him. He now says that that figure appears only in the first draft and that it may alter. Anything may alter but that is why consultation is undertaken; so that people know where they stand. I do not believe that the figure is very likely to alter unless for one reason or another, having heard all the views, it is deemed appropriate that it should alter.
Lord Williams of Elvel: That is precisely the point. In the course of consultation, it may well alter. The noble Earl has not persuaded me to change my mind. I believe that this Committee, and through this Committee, the House, should impose a deadline on what the Government are going to do. If that is not done, local authorities will remain in an uncertain position.
I accept fully the Minister's good faith when he says what he says. I do not wish to question it at all. Nevertheless, the Minister knows as well as anyone that all sorts of things may happen. The Minister may move yet again, if I may say so, to another department and others may replace him and things may change. Therefore, the January date is not a fixed date. It is an aspiration which may or may not be met. Therefore, it
834
is up to Parliament to ensure that the Government meet their commitments so that local authorities know exactly where they stand in the prescribed time.
Baroness Hamwee: Before the noble Lord concludes on this matter, does he not agree that there is a distinction between this Bill and other Bills? This Bill seeks retrospective permission. There was every opportunity for the regulations to he dealt with at the same time. It is not a matter of seeing how the legislation goes; seeing whether the Bill is acceptable to Parliament; looking at its final form; and then, perfectly understandably, the Government laying regulations to deal with the detail which is set out to follow the framework of a Bill dealing with a new matter. This is not a new matter and the Government would have acted more helpfully to those who are reacting and feeling a little sore—the term I used on Second Reading—about the situation were the whole matter dealt with as a package.
Earl Ferrers: I understand the anxiety of the noble Baroness but, with respect, I do not believe that it should be argued that we put into statute something which is unnecessary because some people feel sore about it. All right, the noble Baroness says that that should have been done beforehand. One may argue that backwards and forwards. But the fact is that the consultation is taking place and the Government are likely to lay the regulations before Parliament in January. We are always being told that it is important not to place unnecessary matters on the statute book. Therefore, I believe that it is wrong to put on to the statute book something which is unnecessary when a Minister has given an indication that the action will be taken anyhow and in a very short period of time.
Lord Williams of Elvel: I wish to test the opinion of the Committee on this matter.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 93; Not-Contents, 137.

Division No.1

CONTENTS

Addington, L.

Donoughue, L.

Airedale, L.

Dormand of Easington, L.

Archer of Sandwell, L.

Dubs, L.

Ashley of Stoke, L.

Eatwell, L.

Avebury, L.

Ewing of Kirkford, L.

Barnett, L.

Ezra, L.

Beaumont of Whitley, L.

Falkender, B.

Birk, B.

Falkland, V.

Bruce of Donington, L.

Farrington of Ribbleton, B.

Callaghan of Cardiff, L.

Foot, L.

Carmichael of Kelvingrove, L.

Gallacher, L.

Carter, L.

Gladwin of Clee, L.

Castle of Blackburn, B.

Gould of Potternewton, B.

Cledwyn of Penrhos, L.

Graham of Edmonton, L. [Teller.]

Clinton-Davis, L.

Ham wee, B.

Cocks of Hartcliffe, L.

Harris of Greenwich, L.

Cudlipp, L.

Haskel, L. [Teller.]

David, B.

Healey, L.

Dean of Beswick, L.

Hilton of Eggardon, B.

Diamond, L.

Hughes, L.

Donaldson of Kingsbridge, L.

Hylton-Foster, B.

835

Irvine of Lairg, L.

Peston, L.

Jacques, L.

Prys-Davies, L.

Jay, L.

Richard, L.

Jay of Paddington, B.

Robson of Kiddington, B.

Jeger, B.

Rochester, L.

Jenkins of Putney, L.

Rodgers of Quarry Bank, L.

Kennet, L.

Sainsbury, L.

Kilbracken, L.

Seear, B.

Kintore, E.

Serota, B.

Listowel, E.

Simon, V.

Longford, E.

Smith of Gilmorehill, B.

Lovell-Davis, L.

Stallard, L.

Macaulay of Bragar, L.

Stoddart of Swindon, L.

McIntosh of Haringey, L.

Strabolgi, L.

Mackie of Benshie, L.

Taylor of Blackburn, L.

Mallalieu, B.

Thomas of Walliswood, B.

Marsh, L.

Tope, L.

Merlyn-Rees, L.

Turner of Camden, B.

Methuen, L.

Wallace of Coslany, L.

Milner of Leeds, L.

Walpole, L.

Molloy, L.

White, B.

Monkswell, L.

Williams of Elvel, L.

Murray of Epping Forest, L.

Williams of Mostyn, L.

Nicol, B.

Winchilsea and Nottingham, E

NOT-CONTENTS

Aberdare, L.

Elton, L.

Addison, V.

Faithfull, B.

Ailesbury, M.

Ferrers, E.

Ailsa, M.

Fraser of Carmyllie, L.

Aldington, L.

Fraser of Kilmorack, L.

Alexander of Tunis, E.

Gainford, L.

Ampthill, L.

Goschen, V.

Archer of Weston-Super-Mare, L.

Gray, L.

Astor of Hever, L.

Gray of Contin, L.

Balfour, E.

Greenway, L.

Belhaven and Stenton, L.

Gridley, L.

Blaker, L.

Hailsham of Saint Marylebone, L

Blatch, B.

Harding of Petherton, L.

Blyth, L.

Hayhoe, L.

Boardman, L.

Hemphill, L.

Boyd-Carpenter, L.

HolmPatrick, L.

Brabazon of Tara, L.

Howe, E.

Braine of Wheatley, L.

Ilchester, E.

Brougham and Vaux, L.

Inglewood, L.

Bruntisfield, L.

Jellicoe, E.

Buckinghamshire, E

Killearn, L.

Burnham, L.

Kimball, L.

Butterworth, L.

Kitchener, E.

Cadman, L.

Lane of Horsell, L.

Caldecote, V.

Lauderdale, E.

Campbell of Croy, L.

Lindsay, E.

Carnock, L.

Lindsey and Abingdon, E.

Carr of Hadley, L.

Long, V.

Chalker of Wallasey, B.

Lucas, L

Chelmsford, V.

Lucas of Chilworth, L.

Chesham, L. [Teller.]

McColl of Dulwich, L.

Clanwilliam, E.

McConnell, L.

Coleridge, L.

MacFarlane of Bearsden, L.

Courtown, E.

Mackay of Ardbrecknish, L.

Cox, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Cross, V.

Cullen of Ashbourne, L

Macleod of Borve, B.

Cumberlege, B.

Manchester, D.

Dacre of Glanton, L.

Mancroft, L.

Davidson, V.

Merrivale, L.

De Freyne, L.

Mersey, V.

DeL'Isle, V.

Miller of Hendon, B.

Denham, L.

Milverton, L.

Dixon-Smith, L.

Monk Bretton, L.

Donegall, M.

Monteagle of Brandon, L.

Downshire, M.

Montgomery of Alamein, V.

Dundonald, E.

Mottistone, L.

Ellenborough, L.

Mountevans, L.

Elles, B.

Mowbray and Stourton, L.

836

Munster, E

Sandys, L.

Murton of Lindisfarne, L.

Seccombe, B.

Nelson, E.

Skelmersdale, L.

Newall, L.

Soulsby of Swaffham Prior, L

Nickson, L.

Stanley of Alderiey, L.

Norfolk, D.

Stewartby, L.

Northesk, E

Strange, B.

O'Calhain, B.

Strathclyde, L. [Teller.]

Orkney, E.

Sudeley, L.

Orr-Ewing, L.

Suffield, L.

Oxfuird, V.

Terrington, L.

Teviot, L.

Parkinson, L.

Teynham, L.

Pender, L.

Thomas of Gwydir, L.

Platt of Writtle, B.

Tollemache, L.

Rawlings, B.

Trefgarne, L.

Rennell, L.

Ullswater, V.

Renton, L.

Vivian, L.

Renwick, L.

Wade of Chorlton, L.

Rodger of Earlsferry, L.

Westbury, L.

St. Davids, V.

Willoughby de Broke, L.

St.John of Fawsley, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.1 p.m.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 2:
Page 3, line 2, at end insert—
("( ) Any regulations made by the Secretary of State under the provisions of subsection (5) above shall provide for the application of a service level agreement governing the administration of a qualifying inquiry and the performance of any person appointed to hold it.").
The noble Lord said: We have had a number of debates both in another place and here on Second Reading about service level agreements. The effect of the amendment would be to write the concept of service level agreements between the planning inspectorate and local planning authorities onto the face of the Bill.
I have to tell Members of the Committee that local planning associations are concerned that, as the requirement for inquiries into development plans—which is a fairly new invention—is established in legislation, local planning authorities will be in the position of being required to use a service that is only offered by one agency for a function that they are statutorily required to fill. In those circumstances, they consider that it is essential that the level of service required from the inspectorate is formally set out together with some means of redress for the planning authority if the inspectorate fails to live up to those requirements. In a way, if I may put it this way, it is a form of local authorities' charter. I hope that those words find resonance with some Members of the Committee opposite.
The issue has been raised on a number of occasions and amendments have been produced and rejected which would have introduced a contractual relationship between the inspectorate and a local planning authority. Indeed, the Minister in another place said that the arrangements should not be written into legislation. Perhaps I may quote what he said:
"Many of the factors that influence the practical operation of development in plan inquiries such as the number of objections are outside the planning inspectorate's control. The…[Opposition]

837
should realise that that is why there are no targets and penalties for the planning inspectorate".—[Official Report, Commons, Standing Committee E, 17/5/95; col. 19.]
That does not seem to live up to the Government's commitment to give value for money to everyone, including local planning authorities. I hope that Members of the Committee will appreciate that that is part of what I believe to be the Government's campaign.
As I understand it, the local authority associations have begun discussions with the department on the contents of a service level agreement and have reached the stage where a draft of such an agreement can be ratified. While we appreciate all that, we believe, nevertheless, that the principle for such an agreement should be on the face of the Bill. I beg to move.
Baroness Hamwee: I should like briefly to express my support for the amendment. When I was making inquiries about the matter before the Second Reading of the Bill, various comments were made to me along the lines of, "the inquiry went in a very leisurely manner and we didn't seem to make the best use of the time". Such comments came from local planning authorities which were frustrated that the inspectors were not, so to speak, observing best practice. It is that aspect to which the amendment is directed.
Before the Minister says it himself, I am sure that the noble Lord, Lord Williams of Elvel, would be perfectly happy to accept that regulations to be brought in by January (as we have heard) might not give adequate time for the matter to be discussed between all the parties. If the Government were, perhaps, to suggest a date by which they might make regulations dealing with the matter, I for one would be glad to hear it.
Earl Ferrers: I long to be helpful to the noble Lord, Lord Williams. When speaking to the last amendment he said that things had not been done quickly enough because everyone had been on holiday. All I can say is that the noble Lord seems to have indulged himself in work while on holiday by trying to think of amendments which he could table and which the Government are obliged to refuse. I think that the noble Lord should try to find somewhere more relaxing to go on holiday next year so that he does not keep providing us with such curious amendments.
Again, there is not a great deal between us on the matter. The only difference is whether it is essential to include in the Bill specific statutory regulations requiring a "service level agreement" to apply as a condition of charging for an inspector's services at a qualifying inquiry.
As the noble Lord implied—and I am sure that he does know—he is aware that officials of my department and those of the Planning Inspectorate Agency have been consulting officers of the local authority associations in recent months about a draft service level agreement. The consultation process which is now virtually complete—and that will please the noble Baroness, Lady Hamwee—has been most helpful. We are grateful to the associations for their attitude and approach to the matter. Provided that the associations
838
ratify the agreement (and that is a particular quirk which applies to the associations in that they have to do so) it should begin to operate for inquiries which planning authorities ask the inspector to arrange from December onwards. I believe that that, too, will satisfy the noble Baroness.
I believe that our intentions on the matter are perfectly clear. We, too, want to see an effective service agreement in operation. Once it has been in operation for a reasonable period we will want to review how effectively it is working in consultation with the associations. I believe that that is the right way to do it and not to put it on the face of the statute. I am sure that this time, at least, I will have persuaded the noble Lord, Lord Williams, who is no doubt in an amenable mood having just returned from the Summer Recess. I hope, therefore, that he will agree not to press the amendment.
Lord Williams of Elvel: I am most grateful to the noble Earl. I certainly will take a more relaxing holiday next time than I did this time. I hope very much that on my relaxing holiday I shall not run into the noble Earl on the same beach and in the same place. But if I do I shall certainly make sure that on future occasions I do not spend my holidays, as the noble Earl seems to think, working on amendments that he cannot possibly accept.
Earl Ferrers: Perhaps I may just observe that that is a peculiarly unchivalrous remark. I had hoped the noble Lord would say that he would be delighted to have that experience.
Lord Williams of Elvel: We certainly enjoyed ourselves. I basically agree with what the noble Earl said; it is not entirely necessary to put this on the face of the Bill. However, I am glad to have the noble Earl's assurance that this matter is being worked on actively and will be dealt with and there will be no confusion about it. In the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Validation, with retrospective effect, of certain requirements to pay, and certain payments made, in connection with past appointments]:
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Williams of Mostyn: There are deep questions which we on this side believe arise out of the words in Clause 2. Perhaps I may touch on one or two of them. Clause 2(1) states:
"This section applies in any case where, at any time before the passing of this Act, the Minister appointed any person to hold",
an inquiry. The words therefore are not limited in time or by any other form of description. If one goes further I suggest that one's doubts are reinforced. The words,
"in any case where, at any time before",
refer as far back as the Town and Country Planning Act 1968 (that is, 27 years); the Town and Country Planning Act 1971 (24 years); and the Local Government Act 1985 (10 years). On a first reading of the words they seem to contain extraordinarily wide, unlimited powers. One is troubled, as my almost namesake the noble Lord, Lord Williams of Elvel, indicated, about this wide

839
element of retrospection. I for one would be obliged if the Minister would indicate whether there should not be some limitation in point of time. What sort of sums are involved here? I do not refer to the per diem amount that was specified by the noble Earl earlier. What are the global sums involved? How many authorities are likely to be caught by this extraordinarily wide net?
Clause 2(13) relates to the repayment by local authorities to the Minister of sums actually paid over an indeterminate number of years. How many authorities are in that category? How much has been paid to these authorities from public funds? Ought there not to be some limit of time about demands for repayment of those sums so that local authorities, which have to be the custodians of public moneys, have a degree of certainty in the conduct of their fiscal arrangements? Ought there not to be some time limit specified for requesting payments as opposed to requesting repayments? I simply ask those questions because I believe as a matter of principle that they demonstrate that these wide powers ought to be the subject of careful scrutiny. Unless a reasoned and acceptable account is given by the Minister one will have great difficulty in doing other than opposing the Question that Clause 2 stand part of the Bill.
4.15 p.m.
Earl Ferrers: The noble Lord, Lord Williams of Mostyn, asks some pertinent questions and, if I may say so, he is quite right to do so because I believe that all of us dislike any form of retrospective action. I hope that I shall be able to persuade him why that is necessary in this case and that the provisions will not be as bad as he thinks. He is quite right to say that there is no time limit. There was the Town and Country Planning Act 1971 and, theoretically, this measure could have applied as far back as the Town and Country Planning Act 1968. However, that is not the case because there is a limitation period of six years. Even so, if this clause were removed, it would still be possible to go back to 1989. What we are talking about here is local authorities which have paid for inspectors' services and which have always done this over the years. Everyone knew that that was the accepted course of action and everyone was content with it. However, that is a point that has now been challenged. I shall discuss that later.
The noble Lord asked what was the total cost involved. The total repaid is £3 million to 100 planning authorities and the interest is £108,000 to 28 authorities. Those would be the sorts of sums which would have to be recovered. If this clause were removed, it would mean that there would be a total cost of £11 million. Perhaps I may explain why this is necessary, and I hope that I shall be able to satisfy the noble Lord, Lord Williams of Mostyn. We are doing no more here than validating—in other words, approving—what people had done when everyone thought that what they had done was correct; that is, when an inquiry is conducted the planning inspectorate provides an inspector and the local authority is charged for the services of the inspector. That is what is at issue; it is what everyone has done and what everyone accepted was a reasonable thing to do. This has been going on for the past 20 years.
840
It is only now that the law is found to be not what everyone thought that it was, and with which everyone was content,
There are two main reasons why the Government consider that retrospective validation is justified in this instance. First, the provisions of Clause 2 impose no new financial burden on local planning authorities. These provisions simply validate past payments which all the local authorities concerned made in good faith, as did my department and everyone else, believing that they were sought and paid lawfully. As soon as doubts arose, the planning inspectorate stopped levying inquiry charges, but it also quite reasonably warned local authorities that in the event of legislation to validate the payments which had been made in the past, charges would be made for inquiry services which the inspectorate had provided during the interim period. Those are the figures of £3 million to planning authorities and the interest of £108,000 to 28 authorities which I gave the noble Lord earlier.
We have to have regard in this instance to the financial arrangements under which the Government and local authorities operate. In past years and in the present year general provision has been made in the annual local government finance settlement for the estimated sums which planning authorities might be expected to incur by way of charges for inspectors' services at development plan inquiries. This does not mean of course that the amount which has been allowed for each authority which is required to hold an inquiry can be specifically identified. However, it means that a sum has been included for the purpose of inquiries in a large group of local authority services which fall under the category of "all other services". Without the retrospective provisions these financial arrangements would have to be reviewed and the sums which had been allowed would have to be recovered by the Department of the Environment for the authorities in general. Frankly, that would be a bureaucratic nightmare and disproportionately expensive to administer.
Secondly, without retrospection the other charging provisions in the Bill would not be fair to those planning authorities which through no fault of their own have not yet reached the stage of holding an inquiry as part of their development plan process. It would be unfair in a number of ways. First, those local authorities which have paid but have not requested a refund would be unfairly treated in comparison with those which have obtained a refund. Secondly, those which have obtained a refund would be advantaged in comparison with those which, in the future, would be charged for what everyone believed up to now to be a proper and reasonable charge but which, if the clause were deleted, the former would not now have to pay. Thirdly, it is unfair to those local authorities which have not yet held an inquiry but will do so in the future and will be charged for that which the deletion of the clause would amend to be unchargeable in the past.
There is no good reason why planning authorities which have held planning inquiries in the past should now receive an unexpected windfall, which would be the case if the clause were to be removed. As the Government have provided funds to local authorities,

841
which the noble Lord wishes to make a windfall, it would of course be incumbent on the Government to claim back the windfall.
To put the matter in a nutshell—which is always a dangerous thing to do with the noble Lord, Lord Williams of Mostyn—everyone thought that the position was such and such and local authorities were prepared to pay for inspections. They always did so. It was found that there was a loophole, which nobody had expected, and the retrospection is to close that loophole. Without the clause the position would be grossly unfair all round. I hope that the noble Lord is satisfied with that explanation.
Lord Williams of Mostyn: As always, I am most grateful for the care and courtesy which the Minister devotes to answering my questions. However, I regret to say—and I am sure that the fault is mine—that I am neither enlightened nor satisfied by the explanation put forward. It is, of course, a cause of great contentment to us all to hear the noble Earl speak with commendation of a retrospective tax on a windfall. I am obliged to hear that that is now to be government policy. However, I must not intrude unnecessarily on private grief, and I shall turn to one or two specific points.
The noble Earl says that this measure imposes no new burden on any local authority. Can that be so? Subsection (13) requires that sums paid to a local authority over a considerable number of years should be repaid. Most persons dealing with economic matters would regard that as the imposition of a new burden.
I wish to put a specific question which is of some importance. I indicated that the longest period of financial attack against local authorities could be as much as 27 years because of the specific designation in Clause 2(1)(a)(i) of the Town and Country Planning Act 1968. The Minister said that my fears were unfounded because there would be a six-year limitation period. I should be grateful for confirmation that that suggestion arises from Clause 2(2). I respectfully suggest that what the Minister has indicated as his understanding of subsection (2) is not correct. Clause 2(2) provides that:
"The Minister shall have…power to require the whole or any part of the costs borne by him in relation to the qualifying inquiry to be paid by the local planning authority causing the qualifying inquiry to be held; and"
these are the important words,
"any amount so required by him to be paid by a local planning authority shall be, and shall be taken at all times after the making of the requirement to have been, recoverable from that authority as a civil debt".
The construction of that subsection which I humbly offer is that the six-year limitation period will run from the date of the requirement being made, not from 1989 as in the Minister's example. In other words, if I am right, and I think I may be, the civil debt recovery period will be a period of six years from the date of the requirement. Of course, the requirement can itself relate to sums expended, or not expended as the case may be, going back to 1968. This remains a serious problem when, after all, one is dealing with fairly limited sums.
Earl Ferrers: I am sorry that I did not make my position clear to the noble Lord. If I did not, that was my fault. It is not his comprehension which is adrift but merely my explanation.
Perhaps I may try to help the noble Lord a little further. I am always hesitant to get into legal tangles with the noble Lord, who is an expert in these matters. He said that his understanding of the Town and Country Planning Act was that claims could go back for 27 years. The clause validates all charges which have been levied as far back as 1968. But, by virtue of Clause 2(2) it is provided that such sums are recoverable as a civil debt from the date of the making of the requirement to pay. Therefore, if a charge has been levied and an authority has not paid it can only go back six years by virtue of Section 9 of the Limitation Act 1980.
The noble Lord, Lord Williams, will be far more familiar with the niceties of these criteria and legal positions than I. However, what I am trying to tell the noble Lord, and the Committee, is that the sole purpose of the clause is to close an unsuspected loophole, one which everyone thought did not exist. For the past 20 years everyone had been quite content to pay.
Perhaps it is not the noble Lord's intention, but if he were to remove Clause 2 that would cause terrible problems, because all payments made by local authorities over the past six years could have to be refunded by the Government. However, the Government had included in standard spending assessments and the revenue support grant figures which included moneys which local authorities would have to pay for those services. That is why I say that if local authorities received a windfall because your Lordships deemed it necessary to remove Clause 2, as a result of which windfall the Government had to pay back all that the local authorities had spent, then the Government would have to recover from the local authorities that amount of money that they had given to local authorities to meet that expenditure. I think that that is unreasonable and would cause problems all over the place. All we are trying to do is to restore the position to what everyone thought it was.
I hope that with that simple explanation the noble Lord will find it easier to understand the position than he did before.
Baroness Hamwee: Perhaps I may pursue that point before the noble Lord responds. The words:
"shall be taken at all times to have had"
appear on the first line of subsection (2). The Minister has told us that those words go back to the first of the Acts referred to. There is a similarity between those words and the words introduced by the Limitation Act:
"and shall be taken at all times after the making of the requirement to have been".
Does the Minister agree that the use of similar terminology meaning different things is bound to lead to confusion? I apologise to the Committee, but that is why I am prolonging this short debate.
Earl Ferrers: One could describe this as an important drafting matter. We are dealing with an Act which states that this provision shall apply to all those cases and that is limited by the six-year limitation in Section 9 of the

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Limitation Act 1980. We are dealing with both the town and country planning Acts which refer back a long time and it is the Limitation Act which prevents it going further than the six years.
4.30 p.m.
Lord Williams of Mostyn: I simply wish to be helpful as will doubtless be recognised by all. Subsection (2) introduces the six-year period of limitation in the Limitation Act to which the noble Earl rightly refers to the date of the making of requirement—in other words, not from the date of the original liability.
My essential purpose was to raise the question of principle, which I maintain to be important. My subsidiary purpose is to ask the Minister to consider whether some of the words and phraseologies might have been rather more felicitously drafted. Some thought at least should be given to the questions raised.
Earl Ferrers: I apologise to the noble Lord. He is quite right. He referred to the matter and I did not reply to it.
The noble Lord thinks that the six year application goes back to when there is a requirement to pay. I believe that he will find that the six year period goes back from the Royal Assent, when the Bill becomes an Act, which is then curtailed by the six years. That is the time when the provision will come into effect.
The noble Lord asked a number of quite technical, legal points. Rather than to have a possibly wrong explanation from me I should like to write to him so that he knows the exact position.
Lord Williams of Elvel: Will the noble Earl be good enough to look at the drafting to which my noble friend referred? The Report and Third Reading stages are to come. In the light of the remarks made by my noble friend, if the Government feel that there is a point we are happy to accept whatever amendment the Government may put forward to clear up the matter.
Earl Ferrers: Of course I shall take account of what Members of the Committee have said. I accept the kind offer of the noble Lord, Lord Williams of Elvel, that he would be happy to accept any amendment that the Government put forward. I assume that the noble Lord, Lord Williams of Elvel, having asked the question, wishes me to respond to the noble Lord, Lord Williams of Mostyn. It is a complicated way of doing things, but if that is the way in which the noble Lord, Lord Williams, wishes me to deal with it I am content to do so.
Of course I shall consider these matters. The noble Lord, Lord Williams of Elvel, said that if we put down an amendment, it would go down quite happily. By that I assume he also meant that if we did not put down an amendment that would go down quite happily too. On that assumption and generosity of understanding—it is always there if nothing interrupts it—I shall certainly consider the points made. I shall also let either of the noble Lords, Lord Williams, know the result of our considerations before the next stage.
Lord Williams of Mostyn: I am much obliged to the Minister for that response.
Clause 2 agreed to.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): Before we proceed, there is a correction to be made. The result of the Division on Amendment No. 1 was announced incorrectly. The correct figures are: Contents, 90; Not-Contents, 140. The figures given earlier—namely, Contents, 93; Not-Contents, 137—should be disregarded.
Clause 3 agreed to.
Clause 4 [Retrospective validation of payments etc. in connection with certain past Scottish inquiries and hearings]:
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Ewing of Kirkford: It may seem to the Committee that the debate that we are about to have is similar to the debate on whether Clause 2 shall stand part of the Bill. Perhaps I may take a few moments of the Committee's time to explain that there is a significant and major difference between the contents and needs of Clauses 2 and 4 of the Bill. Clause 4 has the same effect in Scotland as Clause 2 has in England and Wales.
Perhaps I may explain the background to the legislation. As the noble Earl has been at pains to explain throughout our short discussion, the legislation has arisen because the Government were challenged in the English courts by Birmingham City Council, which questioned the Government's legal right to charge them for such inquiries. The court upheld Birmingham City Council's approach that the Government had no legal basis on which they could charge for those inquiries. As time passed, it was necessary for the Government to introduce this legislation and, in the case of England and Wales, to make it retrospective in order to validate what had been understood to have been the position over the years.
If that had been the position in Scotland, and against the background of the debate on Clause 2, I would not oppose the Question that the clause stand part. However, that is not the position in Scotland. The retrospective application of the legislation to Scotland is both unnecessary and, for that reason, highly undesirable. There never has been a problem in Scotland. No local authority has ever challenged the Government's right to charge those payments. No local authority has any intention of challenging the Government's rights to charge those payments because the local authorities referred to go out of existence in six months' time with the whole local government scene in Scotland changing and new authorities coming into being on 1st April 1996.
The extent of the problem in England has been defined by the noble Earl, involving amounts of £2 million to £3 million, possibly rising to £11 million.
I tabled a Written Question before the House adjourned for the Summer Recess. I asked the total amount of payments by Scottish local authorities to the Scottish Office for such inquiries. I asked for the figures over a 10-year period. I was given the most recent up-to-date figure for the five-year period. The total figure for five years is only £220,000. I am reliably informed—I shall not reveal my source—that I was not given the figures for

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the 10-year period because they would have been extremely embarrassing to the Government's case and that the whole issue would have been made to look ridiculous. Therefore, there is no need for retrospective legislation in the case of Scottish local authorities. There never has been a problem. There never will be a problem. Therefore, there is no need for retrospection. Both Houses guard with jealous care the principle of not having retrospective legislation if at all possible. In my 25 years in both Houses I can count on one hand the number of times that retrospective legislation has been introduced.
I simply say this to the Minister who will reply to the debate. In all seriousness, I ask him sincerely to accept that the clause does not stand part of the Bill. There is simply no reason for the provision in Scotland and therefore no need for it.
The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay): I have some sympathy with the noble Lord, Lord Ewing, when he says that Clause 4 is highly undesirable. I agree that any retrospective legislation is undesirable. Where I have no sympathy is when he says that it is highly unnecessary. We believe that Clause 4 is a necessary addition to the Bill.
My noble friend Lord Ferrers earlier set out to your Lordships the principles underlying Clauses 2 and 4 and therefore I do not propose to go over the same ground in comprehensive detail, given his recent explanation. The reasons why the Government feel that retrospection is justified in Scotland are in parallel with those which my noble friend used to justify the legislation for England and Wales as regards Clause 2. First and most important, past transactions were carried out in good faith and Clause 4 simply validates payments made in the past. That is absolutely crucial to the reasoning behind Clause 4. Clause 4 is vital in order to introduce validation of something which has been carried on in good faith for so long. Secondly, in validating payments it raises no new costs for authorities, not least because account has been taken of the costs in successive local government annual settlements.
Thirdly, without the inclusion of the clause, authorities which have not yet reached the point of holding a local plan inquiry will be required to pay costs which others which have already held an inquiry might be entitled to reclaim. In other words, if the retrospective powers for Scotland were not included in the Bill, it would be open to authorities to reclaim the sums paid in recent years. That right would not be open to other authorities, so there would be a basic unfairness there.
Your Lordships have accepted the principle that it is right that an authority pays the charges for the services of a reporter appointed to an inquiry. I believe that that has been widely recognised, both by the Opposition parties and CoSLA and so on. The principle applies equally to the past and to the future. It is the basis on which all parties have operated in good faith for more than 20 years. For that reason, the Government are persuaded that retrospection is justified in this case.
I conclude my explanation to the noble Lord, Lord Ewing, with the basic point that if we were not prudent enough to take the retrospective power now, we would
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simply lay ourselves open to a challenge in the months to come. That would then invalidate all payments made to date and we would have to seek new primary legislation to sort the position out. It is common sense that we sort it out now, before there is a problem and not later, after one arises.
The Earl of Balfour: I wish to ask the noble Lord, Lord Ewing, a question regarding his figure of £220,000. I wondered whether that money had been spent on just one or two cases in the five-year period. If so, it is quite a big sum for the local authority involved or whoever pays.
We must never leave local authorities in any doubt about who pays what. I was slow in rising to my feet to ask that question, but I should like some idea whether many cases were covered in the £220,000, the rough figure which was mentioned, or just one or two.
Lord Ewing of Kirkford: The figure I was given was not broken down into the number of public inquiries held. To anyone in Scotland who follows events in the field of local public inquiries, it is obvious that a fair number involve appeals from the applicant to the Secretary of State. They are held fairly regularly by all local authorities throughout Scotland. So we can take it that a fairly large number of public inquiries were included in the global figure that I gave of £220,000 over a five-year period. That is not a great sum.
I was disappointed with the response of the noble Earl, Lord Lindsay. There is no comparison between Clause 2 of the Bill and Clause 4. Clause 2 is there because the Government were challenged in the courts by Birmingham City Council. Clause 4 is there because the Government want the Scottish position to be the same as in England. However, the problem that led to the English position has never arisen in Scotland. The noble Earl said that the payments were made in good faith. On what authority does he present to the Committee the scenario or possibility that local authorities will now break that good faith? There is no indication now and never has been of that.
I have to accept that the noble Earl will not move, he has been given a bad brief, he read it fairly well and there is not much substance to the case but he has done his best. I shall not push the matter to a vote but he has failed to convince me of the need for the retrospective part of the Bill in its application to Scotland.
Clause 4 agreed to.
[Amendment No. 3 not moved.]
Clause 5 agreed to.
House resumed: Bill reported without amendment.

Dogs (Fouling of Land) Bill
4.47 p.m.
The Earl of Northesk: My Lords, I beg to move that this Bill be now read a second time. I take the opportunity to congratulate my honourable friend, Mr. Harold Elletson, on being successful in the ballot in another place, thereby introducing this important measure to Parliament.

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It may also be of benefit to your Lordships if, by way of declaring a form of interest, I state that I am a member of the Kennel Club. I have spoken to members of the club about the Bill and they are fully supportive of its provisions. Item 4 of the Kennel Club's general code of ethics, the etiquette that it expects of all dog owners and not just its members, states:
"Owners will clean up after their dogs in public places or anywhere their dogs are being exhibited".
Your Lordships will be aware of the significant risk to health, particularly that of children, posed by contact with dog faeces. Your Lordships will also be aware that a by-law-making procedure has existed for some time as the means for controlling dog fouling on land to which the public has access. This procedure is unnecessarily cumbersome, costly and time-consuming. A local authority may find that it takes at least 18 months and as long as three years to move from deciding to apply for provisional approval to having dog fouling by-laws in place.
In the light of that, the Advisory Group on Litter, set up in the summer of 1993 to review the litter legislation in Part IV of the Environmental Protection Act 1990, recommended in its 1994 report that there should be a nationally defined offence based on the existing "poop scoop" by-law offence. The group also recommended that a fixed penalty system should be extended to dog fouling offences on the basis that, under the current by-law procedure, local authorities often do not give a high priority to potential prosecutions in the event of an offence being committed under by-laws. Inevitably this has undermined the ability of the system to tackle the problem effectively.
Thus the recommendations of the group were aimed at simplifying and rationalising the convoluted procedure that local authorities at present have to follow to remedy dog fouling on land in their control. The purpose of today's Bill is to give effect to that intention.
With the leave of the House, I now turn to a more detailed examination of the Bill's provisions. Clause 1 is straightforward. It establishes the offence of failing to clear up after one's dog forthwith when on designated land unless there is a reasonable excuse. The clause follows the existing model by-laws very closely. Because noble Lords are familiar with these I do not intend to dwell over-long on them. However, there are a few refinements that I should draw to the attention of the House. Thus subsection (1)(b) provides a safeguard against local authorities imposing a requirement for clearing up under this legislation if the landowner, occupier or person in charge of the land does not wish it. This is a consequence of the way in which the system in Clause 3 has been formulated.
Noble Lords will note that subsection (3) provides for a maximum penalty of level 3, currently £1,000. This represents a doubling of the maximum penalty as compared to an offence under existing dog fouling by-laws. My own view is that that reflects the anti-social nature of the offence more accurately than previously although, obviously, it will be for the courts to decide the actual level of penalty in each individual case.
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There was much debate in Committee in another place as to whether other exclusions should be specifically included on the face of the Bill. For example, it would be unreasonable to expect sheepdogs working on common land to be subject to its provisions—an issue which I am conscious has caused some concern to the NFU. However, as noble Lords are aware, legislation that embodies copious lists is notoriously difficult to enforce and is subject to endless interpretation. Against that background, the Bill was amended by the insertion of subsection (5). This introduces the further defence of showing that the dog in question was being used for a purpose specified in an order made by the Secretary of State.
Finally in respect of Clause 1, subsection (6)(c) clarifies the defence of "reasonable excuse" so that being unaware of the defecation or not having suitable means of removal shall not constitute a reasonable excuse. The rationale is quite simple. Responsible dog owning is about having control of one's pet at all times. By implication, if one is unaware of its actions one does not have adequate control of it.
Clause 2 gives effect to the fixed penalty recommendations of the Advisory Group on Litter by enabling local authorities to operate such a scheme with respect to the offence of dog fouling as defined in Clause 1. It is modelled on the fixed penalty scheme for the offence of littering which is contained in Section 88 of the Environmental Protection Act 1990. I am sure that noble Lords are familiar with that legislation; I shall therefore not try the patience of the House by explaining it at length. Nonetheless, I should mention one or two salient points.
The fixed penalty scheme as embodied in subsection (2) provides a power for the Secretary of State to prescribe the form of any notice and to vary its level—currently set at £10—by order. It is worth noting that the Advisory Group on Litter proposed that the fixed penalty for dog fouling should be set at £25. It is my understanding that the Government are still considering their response on that issue.
Moreover, some concern has been expressed by the Association of District Councils with respect to the implicit provision in subsection (2) that the moneys received by an authority for any fixed penalty notice issued are payable to the Secretary of State. However, it is important to ensure that authorities do not have any pecuniary interest in cases which they are prosecuting. Furthermore, current convention requires that moneys from fines, whatever the source, should be returned to the Exchequer.
Noble Lords should also note the additional provision in subsection (5) that allows local authorities to authorise people other than their officers to issue fixed penalty notices. This flexibility is essential as many local authorities use contract dog wardens who, without this extension, would be unable to issue fixed penalty notices.
Clause 3 makes provision for a local authority to designate land to which the offence in Clause 1 will apply. It simplifies the way in which local authorities can identify areas where the offence of failing to clear up after one's dog applies. It means that the local

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authorities will no longer need to establish which enabling power to use or obtain central government confirmation.
Subsection (1) allows a local authority to designate any land in its area that is open to the air and to which the public have access with or without payment. Thus, local authorities will be able to designate land with which they currently have no power to deal under by-laws—such as school land—to which the public are entitled or are permitted to have access notwithstanding the opt-out provisions implicit in Clause 1(1)(b).
Subsection (2) enables a local authority to designate land either specifically or by description and to revoke or amend orders previously made. In this way, it is afforded the option of designating a broad category of land within its area. Equally, if there were particular areas where the problem of dog fouling was more acute and local authorities wished to concentrate and deploy their resources in those areas, this provision would enable them so to do. They can also amend the designation order to take account of changing circumstances, as, when, and if it is deemed necessary.
Subsection (3) empowers the Secretary of State to make regulations prescribing the form of the orders and the procedure to be followed in the making of the orders which local authorities will be obliged to follow. It is anticipated that these regulations will be framed to include an obligation upon local authorities to undertake consultation about their proposals with local people. An important aid to enforcement will be to ensure that dog owners accept and understand the reasons for any such designations. More than this, should the Bill result in dog owners being made more aware of the issue of fouling, it will serve an extremely important additional purpose, that of promoting responsible dog ownership.
Subsection (4) provides that regulations may make provision requiring local authorities to publicise the making of designation orders. Obviously it is necessary to ensure that members of the public are aware of the areas to which designation will apply.
Clause 4 provides that any order or regulations made under the provisions of the Bill shall be exercisable by statutory instrument and that such statutory instruments shall be subject to negative resolution.
Clause 5, somewhat technical in nature, sets out the effects of the Bill on existing dog fouling by-laws. The intention is that local authority dog fouling by-laws will, after a period, be superseded entirely by the new designation system. Any such by-laws relating to land designated under Clause 3 will cease to have effect as soon as the designation order is made. All remaining local authority dog fouling by-laws will cease to have effect 10 years after the Bill comes into effect. This period will enable local authorities to change the new system at their own pace. And, obviously, they will find it advantageous in that it allows them to operate a fixed penalty scheme, thereby assisting enforcement.
Any dog fouling by-laws which had been made by a body other than a local authority will remain in effect. But it would obviously be unjust if a dog owner could be prosecuted under both the provisions of Clause 1 of
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the Bill and under an extant by-law. Clause 5(4) therefore provides that, in this situation, no offence is committed under any such by-law.
Clause 6 defines local authority for the purposes of the Bill. This is to ensure that in any area only one local authority may operate a fixed penalty scheme under Clause 2 and make designations under Clause 3.
A very important element of the Bill is its attempt to simplify and rationalise the current system. By way of illustration, at the moment a parish wanting to control dog fouling on its land almost always has to make its own by-law. As noble Lords are aware, a district may contain dozens of parishes and, in some rural areas, there may be over 100, all of which at present may have to make individual applications to the Department of the Environment to make dog fouling by-laws in respect of their land. This goes some way towards explaining why the existing system is so cumbersome and time-consuming.
As I mentioned, dog warden facilities and the like are operated administratively at district council level. For those reasons it is sensible that the provisions of the Bill also be administered at this level, as allowed for in the clause. Cynical observers may perceive an attempt to centralise these particular powers at district level. That is not the case. The provision in Clause 1(1)(b) ensures that, if a district designated a parish ground against the parish council's wishes, the council could consent to users of the ground failing to clear up after their dogs. In fact, I very much doubt that this sort of problem will arise although it is important that parishes and others be aware that their interests have been safeguarded in this way.
Finally, Clause 7 provides for the short title, commencement and extent of the Bill.
For your Lordships' reference, I should point out that the Bill will extend to England and Wales only and that it is intended that it will come into force two months after Royal Assent.
There is no better summary of the Bill than that contained in No. 27 of the weekly Science & Environment Monitor bulletin from another place. I make no apology for quoting from it at length:
"The Government feels that the balance between the interest of dog owners and those who are disturbed by dogs and their activities is best determined locally and has declined to legislate nationally. However, it accepted the Litter Advisory Group's views concerning the unsatisfactory nature of the present byelaw system for dealing with fouling, and proposed that the system should be simplified to allow local authorities to introduce 'poop-scoop' areas without reference to central Government, and to introduce a fixed penalty scheme".
The Bill achieves these worthy objectives. It simplifies and rationalises the control of dog fouling and in time will replace the existing system of control through by-laws. Perhaps more importantly it will also instil in the dog-owning public a sense of good practice with respect to fouling and a greater awareness of their social responsibilities in this regard. To any of us who have had the misfortune inadvertently to encounter a dog's mess when walking through a public space, this measure has to be seen as most welcome.

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In conclusion, the Bill is universally supported by all interested parties: the Department of the Environment, the Advisory Group on Litter, the Pet Advisory Committee, the Association of District Councils and many others. Accordingly, I have no hesitation in commending it to the House. I beg to move.
Moved, That the Bill be now read a second time.—
(The Earl of Narthesk.)
5 p.m.
The Viscount of Falkland: My Lords, on behalf of these Benches I should like to thank the noble Earl for his rapid explanation of this short Bill. I had not intended to speak at any great length and shall not do so. I was told by my noble friend Lady Hamwee that the other place had gone through the contents of this Bill at great length, and I did not look at those proceedings. The noble Baroness will deal with the local authority aspects of the Bill with her usual expertise.
I declare my interest as a vice-president of the Pet Advisory Committee. There was a meeting of that body this week which broadly welcomed the contents of the Bill. Any Bill which seeks to improve the condition of pet ownership in this country and in particular of dogs in public places must be welcomed.
This is only a small measure but, having been a Member of this Chamber for 11 years, I am slightly suspicious because it is a very short Bill. One learns to be suspicious of short Bills, and in particular those which contain phrases such as that on the first page of this Bill under Clause 1(5):
"It shall be a defence to a prosecution for an offence under this section to show that, at the time of the defecation, the dog was being used for a purpose specified in an order made by the Secretary of State".
I make no distinction between the Secretaries of State from any parties. I see no reason why Secretaries of State from one of the two major parties should be better or worse than from the other, or, to be fair, from these Benches if the time should arrive when we have Secretaries of State. However, the mention of a Secretary of State makes me suspicious; in particular when I read on the following page of the Bill:
"The Secretary of State may by regulations prescribe the form of orders under subsection (1) above".
That has to do with areas, access and so on.
This Bill is a sensible step forward. We are all concerned about dog mess, not only in the areas designated in the Bill. It surprises me that anyone should think that the dog owning public will co-operate. The Government have put forward very strong objections against dog registration over a very long time. They say that dog registration is not a feasible proposition because it cannot be enforced and the kind of people who need to have it just will not co-operate. I do not see why it will be easy, even under the conditions outlined in the Bill, to ensure that there is an enormous increase in "poop scooping", as I believe it is called, certainly not by the careless or even the fastidious. I myself am very fastidious about these matters. I do not like the prospect of going out with my pet holding a bag and a machine. I have done it under pressure from my wife for my cats. I failed to cut the grass and she said to me, "Because
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you have not cut the grass, the cats have made poopy mess up at the end. You will kindly go out with this bag and equipment and clear it." Being an obedient husband, in a second marriage, I did so. I was surprised to find how easy it was and my sensibilities were in no way offended by it because the equipment that one can buy is extremely efficient. The only problem is that one has to carry a bag around in order to use it.
I should be interested, as I am sure other noble Lords will be also, to see how many people now will walk around with bags and poop scoopers to dispose of the mess. Presumably, the on-the-spot fines which will be levied will be on the same basis as parking fines. Will there be a discount for quick payment? Where parking fines are concerned, that is a sensible psychological move on the part of local authorities. Perhaps that will be introduced in short order for these other kinds of offences.
Seriously—I am serious about this matter—there is a potential problem should Secretaries of State designate where a defence for a prosecution is appropriate. The present Secretary of State may be extremely liberal on this matter and may well mention all kinds of dogs—police dogs, obviously, sheepdogs and working dogs of all kinds. But what about packs of hounds on village greens which now, under this Government, may well be viewed favourably? There may be Secretaries of State in the future who may take a different view about that matter and might say—it seems to me rather an unseemly proposition—that packs of hounds and masters will have their club servants going round with scoops at meets on Boxing Day. It seems to me to be an extraordinary business. I feel that such matters should be on the face of a Bill.
It is merely that I feel suspicious about the simplicity of this Bill, though I must say that I welcome any improvement. Some of the parks, in London particularly, suffer enormously from this problem. Anybody who has children who run about or anybody who goes to play games in a public park knows how appalling it is to come across mess of that kind. This is not just a British problem. I gather that in France they are slowly being submerged under a sea of faeces. I thought that the French were very practical but it seems that their approach is somewhat different. We shall not go into that aspect now but perhaps we can do so at a later stage.
We thought that the last Bill on dogs was simple; namely, the Dangerous Dogs Bill. In my view it has proved to be utterly absurd, as it has in the view of many other noble Lords. It has also proved to be extremely harmful to our society and very expensive. As noble Lords will know, there has been increasing pressure in Parliament, and public opinion is demanding that something be done about that legislation, which was a seemingly simple piece of legislation prompted by media pressure in the early days.
I hope that this simple sounding and perfectly worthy piece of legislation will not hold the same threat. I should be interested to hear when the noble Lord rises to speak, whether he will be able to allay some of my fears, in particular those about the powers of the Secretary of State. I do not feel so irritable about it as I

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may sound, but I should be much reassured if the noble Lord could give me some assurance about the powers of the Secretary of State.
5.9 p.m.
Lord Clifford of Chudleigh: My Lords, I should like to congratulate the noble Earl, Lord Northesk, on his introduction. I shall not be able to manage the same degree of humour as the previous speaker.
Living in a house which is surrounded by farmers, I like to be their spokesman as well as adding a view of the concerns of the non-farming population. Veterinary advice states that the unwormed dog faeces commonly produces a tapeworm called tennuicollis, which writes off the liver of lamb, sheep or cattle and significantly reduces the live weight gain. The lighter the beast, the less carcass value for the farmer.
Less common, but on the increase, is cysticercus ovis, which writes off the complete carcass of the animal concerned. Whereas a liver may be valued at only £1.20, the average lamb carcass is worth £40. A large abattoir dealing with sheep and cattle in the south west of England as well as parts of Wales and northern England calculates that up to 15 per cent. of the Iambs slaughtered in the past year had infected livers and it had to write off 47 carcasses. This abattoir handles more than 600,000 lambs and cattle per annum, showing a liver/carcass loss in the past year of at least £75,000 to the farmers, without considering the labour costs to the abattoir.
If we consider that in 1990 Britain's dog population was 7.5 million, increasing at 4 per cent. per annum, and if we consider the increasing number of people demanding the right to roam—or trespass, as is so often the case—and take their dog for company, it can be seen what increased damage there is likely to be to the livestock farming community. Of the United Kingdom's 24 million hectares, 78 per cent. is agricultural land. Unwormed dogs will leave faeces, tapeworms and eggs which are damaging not only to stock but also to humans, mostly youngsters, who, as we have heard from the previous speaker when talking about local parks, very often play in the grass during the summer, winter or spring. As a westcountryman, I am happy to encourage the tourists from at home or abroad to visit our beaches and moors but I abhor the sight of dogs wandering along the bathing areas and, quite naturally, leaving their faeces, their "mess", where a child's sandcastle may soon appear.
Let us not lose sight of the fact that we are part of the EEC—just a moment ago we heard mention of Europe in the form of France—where the dog population in 1990 was calculated at 37 million and increasing by 4 per cent. per annum. Let us not forget the stray dogs within Europe. They number 2 million. The increase in their number cannot be calculated.
Let us be positive. Let us think of the barriers that have recently fallen. The Berlin Wall—Hooray! Trade tariffs, the travel barriers—Hooray! But just think of the possible removal of quarantine barriers for dogs and other animals entering this country—horror! Rabies and an increased likelihood of dogs fouling the 25,000
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square kilometres of village, town and city in the United Kingdom. Dogs which are not on leads—the majority—foul pavements which are then cleaned by councils—and you pay the council tax which employs the workforce to clean those streets. Animal livestock farmers, the people for whom I am speaking, have enough competition from abroad and do not deserve the worry and the cost of losing a proportionately larger number of their livestock as the dog population increases.
It is essential to consider the reintroduction of dog registration, to harness this potential medical problem and to reinforce the already abused Dangerous Dogs Act.
5.13 p.m.
Lord Soulsby of Swaffham Prior: My Lords, I welcome the introduction of this Bill to the House by my noble friend Lord Northesk and I believe the whole House will be grateful for his doing so.
Pet ownership offers many benefits to society. We have some 6.5 to 7 million dogs in the country to prove that. One in every two households owns a pet of some kind—a companion animal. They offer very positive health benefits—increased longevity after coronary attacks, decreased blood pressure and decreased minor illnesses in households. They are especially valuable to the elderly and lonely and they provide invaluable assistance to those with impaired vision or hearing or other disabilities.
Those are the positive aspects but there are down sides to pet ownership; namely, the fouling of public places. All of us who have had the experience of stepping in dog faeces, sometimes at the most inappropriate moments when we are dressed to go somewhere, find it most inconvenient and there is sometimes a danger from slipping. But more particularly there is the possibility of the transmission of disease to humans and to animals, as mentioned by the noble Lord, Lord Clifford of Chudleigh. However, it is the transmission of disease to children by the parasite toxocara canis that causes most concern. In children it is either in the visceral form affecting the liver or, even more distressingly, in the ocular form in the eye which may lead to blindness of a permanent nature. Even though the number of cases per year is only two per million of the population, that is enough to cause great concern.
In both visceral larva migrans or ocular larva migrans the evidence strongly indicates that their occurrence cannot be related to the specific ownership of a dog. In fact, in 50 per cent. of the cases in the United Kingdom the people concerned have had no contact with dogs during their lives. It is more likely that stray dogs and urban foxes are to blame for some cases of the disease in children.
The environmental contamination, which is not yet fully understood, is an important issue. Five per cent. of soil samples in London have been demonstrated to be infected with the eggs of this parasite which are capable of infecting children. In Scotland 12 per cent. of parks are similarly contaminated. This has caused concern to various groups. I refer to the veterinary organisations which advocate the regular treatment of puppies, the

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campaigns to "scoop the poop" and local authorities. They have sought to reduce the danger to human health from the fouling of certain areas. This has led to regulations being made by councils. Those regulations have varied considerably.
The Bill will simplify the existing system of dog fouling by-laws by the introduction of a unified measure applicable to all forms of land and end the rather cumbersome and time-consuming requirement to gain approval from the Secretary of State for the Environment. The introduction of a fixed penalty fine scheme will make enforcement easier and will act as a more efficient deterrent than the existing system which is time-consuming and expensive. In many cases local authorities do not go along that route for that reason.
The Pet Advisory Committee, which has been particularly concerned with the Bill, supports it thoroughly. It has a broad membership from various veterinary organisations, the principal animal welfare charities and local authority organisations. Members of this House are indeed vice-presidents of the Pet Advisory Committee. I should declare my interest in that I am a vice-president of that committee.
The Pet Advisory Committee has argued that fixed penalty fines should accrue to the local authority for use to promote responsible dog ownership, the provision of dog waste bins and other items. This has strong support from the Association of District Councils but, regrettably, the Minister has not accepted the point despite the strong representation that has been made in that respect. It has been thought sensible not to press this issue for fear that the Bill may run out of time and therefore be lost.
I consider that the Bill will be a very useful step forward in rationalising the legislation on dog fouling and also a useful step in the much needed rationalisation of the whole plethora of legislation applicable to dogs. Its aim is to reduce dog fouling on land and to encourage responsible dog ownership. I believe that the Bill will do that.
However, there are one or two lacunae in the Bill which I wish to question. One has already been referred to by the noble Lord, Lord Clifford of Chudleigh; namely, the question of strays. That is either the real, feral stray which is a permanent stray—and of those we have a substantial number—or the temporary stray; "the latchkey" dog put out in the morning and taken in at night by people who go out to work. Without some means of identifying such dogs as to their owners, it will be difficult to enforce the Bill.
Dare I add my support to what has been said by two previous speakers on the need for dog registration in this respect? It may be very difficult to control fouling by dogs without such a scheme. Under Clause 4 of the Bill it may be possible to take note of this point and perhaps for local authorities to introduce local dog registration schemes where they deem the stray dog issue to be particularly difficult.
The further lacuna is the attitude of individuals going about their normal and legal business; for example, the pack of hounds which may traverse an area of land or meet in a public place where they defecate. Is the master of the pack or the whipper-in responsible for picking up
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the faeces? Should he be armed with a pooper-scooper, perhaps on the end of a polo stick, to go around picking up the faeces? These are issues which need to be clarified. While it may be possible to deal with them under Clause 1(1)(b) or 1(1)(a), which would be "reasonable excuse" as stated, I believe that further clarification of these points is necessary. Nevertheless, I wish the Bill well and an unopposed passage through the House, subject to consideration of some of the lacunae that I have mentioned.
5.24 p.m.
Baroness Hamwee: My Lords, those of us who are regarded by the public as having, quite rightly, a responsibility for making sure that their streets and open areas are clean and not likely to cause problems, are accustomed to hearing quite often words based on the immortal phrase "something must be done". From these Benches I welcome this "something". The complaints range from irritation to real concern about disease, as previous speakers have said. Sadly, it seems not always to he understood that one can be anti-dog fouling without necessarily being anti-dog. I myself am quite pro-dog, but I have often been struck by the oddity of local authorities and others having to fence off relatively small areas to make them dog free, perhaps for a playground. I have wondered who should have priority, the dogs or the people. Sometimes dogs are given a far larger area in which to enjoy themselves. I hope that this Bill will enable both dogs and people, particularly children, to have the necessary facilities.
I do not believe that we should pretend to ourselves that this Bill can possibly solve the whole problem. It is often very difficult to persuade someone who complains about dog fouling and who says, "I know whose dog it is and I know that its owner does not keep the dog under control", to give evidence, if that is required. One understands that: arguments between neighbours are not pleasant. Inevitably, the problem of evidence cannot be solved by this Bill.
There is also the cost of wardens. It will not be practicable to have a warden around every corner waiting to pounce at the relevant moment. It may be that dog wardens can take some lessons from traffic wardens, who seem to have the ability to materialise from nowhere. However, I doubt that it will be practicable to ensure that there are enough wardens to exercise the powers provided by this Bill to the satisfaction of the complainants.
I welcome the Bill despite its shortcomings, but I do not suggest that they can be dealt with except at the margin. This Bill is welcome if for no other reason than it must give the right message to the public—both those who are pro-dog and those who are anti-dog fouling—that this is a serious matter which needs to be co-ordinated. The simplification provided is certainly welcome. A nation-wide scheme may have a little effect on offenders.
I would have liked the money raised under this Bill to go towards provision to make the scheme more effective; in other words, to wardens and the provision of bins. The noble Earl, Lord Northesk, has referred to this already. I understand the point that it would be

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wrong for a prosecuting authority to have a financial interest in the outcome. I thought that behind the scenes the stronger argument was that coming from the Exchequer, which so dislikes hypothecation.
I read the discussions in another place about the term "reasonable excuse". That is a reasonable way of dealing with the matter, though I share a little of the concern of my noble friend about giving the Secretary of State power to designate or specify occasions or animals performing particular functions. I am aware that that was also debated in another place. When the noble Earl replies, it would be helpful if he would give the House an assurance that the parameters of that rule will not be wide and that that power will not be used to undermine the admirable purposes of this Bill.
The land that can be designated is any land open to the air. I assume that that will include roads. By that, I mean the carriageway, the footpath and the gutter. There are dog owners who feel that, if they direct their dog to any particular part of the road, that is somehow not a problem. I believe it is. One perhaps relatively trivial example of that is when one opens one's car door and steps on to the footpath. It is impossible to look down to see where one is putting one's feet.
The noble Earl may be able to help me with one final question. I refer to whether a local authority will be able to "designate" (using the terminology in the Bill) all the open land in its own area to which the public does not have access. That may be the simplest approach for certain authorities in urban areas. Of course, the position is different in rural areas. I can see that a local authority might wish to make a blanket designation and I should be interested to hear whether that is a possibility. I welcome the local flexibility to which the noble Earl referred. Clearly, the problems and concerns of local people are different in different parts of the country.
Finally, I should like to make it clear from these Benches that we are not minded to table amendments to the Bill. We are aware of the pressure of time and would like to see the Bill on the statute book.
5.30 p.m.
Baroness Hilton of Eggardon: My Lords, we on these Benches also welcome the Bill, which simplifies and unifies existing laws. It is clearly a sensible measure. I should like merely to emphasise some of the points that have already been made. The Bill will help to reduce nuisance and distress and the possible spread of diseases carried by dogs. As has been said, the introduction of the fixed penalty fine system makes enforcement easier and may, indeed, act as an effective deterrent, assuming that the dog wardens are sufficiently active.
However, I can see two problems, one of which has already been mentioned by several noble Lords. I refer to the problem of stray dogs. I am thinking particularly of the packs of stray dogs which roam about on council estates, where it is extremely difficult to identify their owners. Often, they are irresponsible owners who turn out their dogs in the morning when they go to work, allowing them to roam around, creating a nuisance and fouling pavements and grass verges. That problem is not
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dealt with by the Bill, but might be helped by having a dog registration scheme—something to which the Government have turned a deaf ear in the past.
The other problem with or disappointment about the Bill is the fact that the fixed penalty fines are payable into the Exchequer although local authorities will have to bear most of the expense and nuisance of designating areas, setting up dog warden schemes where they do not already exist, and erecting notices. The costs and expenses of the scheme will be directly borne by local authorities, yet it does not seem that they will get any benefit whatsoever from this new measure. That is a disappointment and is yet another example of the Government's lack of interest in local authorities and lack of awareness of their problems.
We on these Benches do not intend to table any amendments to the Bill since we wish it well, but I think that we are owed an explanation of why this matter has not been made much more clearly a responsibility of local authorities, with the benefits of the scheme coming to them as well as the disbenefits of having to make provision for it. We welcome the Bill and wish it well.
5.33 p.m.
Lord Lucas: My Lords, in my relatively short time in your Lordships' House I seem to have spent a great deal of time listening to debates on dogs—mostly to debates on rabies or dangerous dogs, so it is with some relief that I turn to the other end of the animal. There are those of us in this House who feel that the bark end is worse than the bite.
I am grateful to my noble friend Lord Northesk for the way in which he has so clearly set out the provisions of the Bill. I join him in congratulating my honourable friend Harold Elletson who introduced the Bill in another place. I am grateful, too, to other noble Lords who have contributed to today's debate.
At present, local authorities have a duty to keep most public places clear not only of litter but also of dog mess. However, a local authority in England or Wales cannot prosecute anyone for failing to clear up after their dog unless the council has adopted an appropriate by-law, and the Secretary of State has confirmed this by-law.
By-laws are not the best mechanism here. As we have already heard, this was the view of the Advisory Group on Litter which recommended that the present dog fouling by-law system in England and Wales should be replaced. In response to the advisory group's recommendation, the Government announced on 14th December last year that we agreed with the replacement of dog fouling by-laws by a nationally defined offence, applied locally.
The Bill before us seeks to achieve this worthy aim and therefore has the Government's full support. The Bill establishes an offence of failing to clear up after one's dog when on designated land. That designation could be very broad, as was hoped for by the noble Baroness, Lady Hamwee. A number of the provisions in Clause 1 are based on the current model by-laws and have much the same effect, although the exact wording may be different. We think that building on the existing model by-laws is the sensible approach.

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This is a Private Member's Bill and is necessarily limited in extent. It does not give wide new powers to local authorities or to vigilante groups to enable the problem to be dealt with more effectively. It merely makes it possible for existing methods of enforcement to be applied better. I am afraid that the Bill will not much help the noble Lord, Lord Clifford of Chudleigh, with his problem with dogs getting in among his sheep and infecting them with tapeworms. However, we hope that the general change in attitude to dog fouling may trickle down and benefit the noble Lord.
The Bill does not tackle the problem of dog registration. Noble Lords will know that we view that proposal with a great deal of scepticism. Furthermore, the Bill will not deal with the problem of strays. As I said, this is a necessarily limited Bill but, within that, we think that it is most useful.
The Bill does, however, break some new ground. It allows local authorities to designate any land which is open to the air and to which the public are permitted or entitled to have access. This gives the local authority much more flexibility than at present in deciding which areas to cover. Land not in the ownership of the local authority may be designated, but the landowner, or indeed the occupier or other person having control of the land, is given an overriding right to allow dog mess to remain on their land. We strongly support this safeguard.
Another new feature of the Bill is that it is a defence to show that at the time of the defecation the dog was being used for a purpose specified by the Secretary of State. This will allow the Government to deal appropriately and flexibly with the problems which could otherwise be posed by the application of this Bill to working dogs. The noble Viscount, Lord Falkland, expressed his concern about how widely the present Secretary of State (or any future Secretary of State) may use that power. The power does not in any way create an offence; it merely creates a defence. I think that the Secretary of State will consult widely with appropriate groups and will from time to time reach a decision on what exemptions should be in force according to the prevailing mood. To take a particular example that has been given, if the hunt met on the green outside my house and left a large quantity of dog mess there, I would consider it proper that members of the hunt should clear it up.
The Bill sets the maximum penalty at level 3 on the standard scale compared to level 2, which is the usual maximum with by-laws. We believe that is appropriate.
The Government fully support extending the concept of the fixed penalty to the offence created under this Bill; this is an important additional weapon in the enforcement armoury. We also support the provisions allowing people other than officers of the local authority to be authorised to issue fixed penalty notices to cover situations where local authorities have contracted out their dog warden services, or where other authorities have enforcement staff on the ground; for example, country park rangers. However, as noble Lords have said, we have not supported the proposal that local authorities should be allowed to keep the proceeds of the fixed penalty. I think that there is general understanding of why that is so. The offence in question is a criminal one, and it is a matter of principle that those who arc involved in enforcing
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criminal offences should not be motivated by the desire to obtain proceeds from their prosecutions. Local authorities receive substantial funds centrally and locally, and it is up to them to determine their priorities.
I touch upon two other important features of the Bill. First, it will no longer be necessary for local authorities to seek the Secretary of State's confirmation for dog-fouling regulations. This is a major administrative simplification. Almost half the by-law approvals which reach the Secretary of State are concerned with dog fouling. That will be welcomed by both central and local government. Secondly, where there is more than one tier of local government in an area the responsibility for designation rests with only one tier. We support this approach. But I can assure noble Lords that if the Bill successfully completes its remaining stages we shall proceed as soon as possible with the orders and regulations necessary for practical implementation.
5.41 p.m.
Lord Northesk: My Lords, we have had a most interesting debate. I am grateful to all noble Lords who have made such valuable contributions and indicated their support for the Bill. As my noble friend has just indicated, since the Bill is a Private Member's Bill it is necessarily limited. I stress that the Bill is not concerned with seeking any change in the substance of existing regulations. The Bill is concerned primarily with rationalising the methodology.
I should not let this moment pass without paying due tribute to the Pet Advisory Committee for the considerable assistance that it has afforded both to my honourable friend and me during the passage of the Bill. It is worth iterating the point that the Pet Advisory Committee represents the principal animal welfare charities, the local authority associations, the BVA and other interested organisations. It has done much to ensure that the Bill before us today works in the best interests of the public, both those who own dogs and those who do not. It is important to realise that the Bill is not anti-dog.
In conclusion, the problem of dog fouling is an intensely emotive subject and one that requires more effective redress than has been possible under the by-law system. With that in mind, I am not at all surprised that the Bill has generated so much warm support. It will enable local authorities to make public spaces cleaner and healthier places and will inspire more socially responsible dog owning.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Wild Mammals (Protection) Bill
5.42 p.m.
Baroness Nicol: My Lords, I beg to move that the Bill be now read a second time.
The Wild Mammals Protection Bill was introduced in another place early this year by my honourable friend the Member for Dumbarton. I should like to offer him my congratulations on his success in getting the Bill thus far. It generated a great amount of interest in its

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passage through the other place. I understand that the MPs concerned received approximately half a million letters in support of the Bill.
During the Bill's progress the clauses concerned with fox-hunting and hare coursing, which were in the Bill at the beginning, caused considerable difficulties and were dropped. I emphasise that point for the benefit of noble Lords who perhaps may not have looked at the present edition. The Bill no longer contains any reference to fox-hunting or hare coursing. The remaining clauses received all-party support, and the wording was cleared by the Ministry of Agriculture, Fisheries and Food and the Home Office. I understand that the wording was agreed with those departments, especially the Home Office, in discussions.
Clause 1 of the Bill extends to wild animals the legal protection presently afforded to domestic or captive animals. It will be a clear offence cruelly to kick, beat, impale, burn, crush or drown any wild mammal. I stress the word "cruelly" because that is the essential background to the exceptions in Clause 2, to which I now turn. Clause 2 lists the exceptions and makes clear that it is not the intention to interfere with legal farming and land management activities. I shall return to this point later. Clause 3 defines a wild mammal. Clauses 4 to 6 deal with the powers of the police and the courts.
There appears to be some anxiety among farmers and landowners that the Bill will affect their normal, legitimate activities. A number of questions have been sent to me and I have taken advice upon them. Noble Lords who are to speak later may be assisted if I deal now with some of those questions and the answers that I have been given.
I repeat that the offences of kicking, beating, impaling, burning, crushing or drowning are all prefixed by the word "cruelly". The meaning of that word is the subject of much discussion. It is intended in this case to have the meaning as used in the Protection of Animals Act 1911 (1912 in Scotland). This matter was carefully considered by the Divisional Court in Barnard v. Evans in connection with the offence of cruelly ill-treating a trespassing dog by peppering it with shot. The court decided that justices had to look at whether or not the defendant was doing something which it was not reasonably necessary to do. Mr. Justice Grove said in Swan v. Saunders that,
"cruelty means unnecessary ill-usage by which the animal substantially suffers".
It is clear from the judgment in Barnard v. Evans that "cruelly" means so as to cause substantial and unnecessary suffering.
A number of questions have been sent to me by the CLA. If your Lordships will bear with me, I should like to deal with those questions and the answers. First, under Clause 2(b) what would be the situation of a farmer who had slightly damaged a rat or other pest during the course of pest control, for example if he had cut off its tail in a trap? Would he be bound to release it on the basis that it had a reasonable chance of recovering? Secondly, would the provisions of the defence provided under Clause 2(c) cover the despatch of injured pests by the use of any method set out in
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Clause 1 when the pest had been injured as a result of legitimate pest control, for example for the purposes of food production and storage and human health?
The answers that I have been given are the following. First, if any rat or other pest was injured during the course of pest control there would be no offence. Clause 2(e) of the Bill makes it clear that a person shall not be guilty of an offence by reason of,
" the lawful use of any snare or trap".
The trapper would be free either to kill the animal (presumably the object of the exercise) or, if he wished, to release it. Secondly, Clause 2(c) ensures that no one can be prosecuted under the Bill for killing, by use of the methods proscribed in the Wild Mammals (Protection) Bill, a mammal which is seriously disabled, unless that person has been responsible for the unlawful disabling of that animal in the first place. I hope that makes clear that, provided the farmer or landowner is engaged in lawful proceedings, he will have a defence in relation to Clause 1.
I come to a second group of questions. Would the provisions of Clause 2(c) cover the position of a person who was constructing a building in accordance with planning permission and who became aware of a rabbit warren in the area of construction as he was about to commence operations? The CLA says that it should be borne in mind that environmental considerations will have formed part of the original planning application.
The CLA also seeks confirmation that Clause 2(c) covers incidents where, for example, a nest of fieldmice is accidentally destroyed by ploughing. The answer that I have been given is that a person constructing a building lawfully cannot be prosecuted if, say, during that lawful operation he crushes a rabbit. It is understood that Clause 2(c) covers that situation. Presumably there is concern over the word "unavoidable" in that clause. It would be reasonable to assume that any reasonable person who discovered a rabbit warren in the way of his construction work would take steps to remove the rabbit by normal pest control before moving in with bulldozers.
Technically, if he knew the rabbits were there but nevertheless merely crushed them with the bulldozer, that could be regarded as the avoidable offence of crushing, but it would still have to be established that he cruelly crushed the rabbits. There would also have to be extensive operations to recover the rabbits to establish whether they were indeed crushed. Whether the police would go to such lengths, and whether the CPS would entertain such a technical offence as worthy of prosecution, is extremely doubtful.
Clearly destroying a nest of fieldmice while ploughing would not be an offence because of the provisions of Clause 2(c). Ploughing is a legitimate activity and so is—something about which the CLA did not ask—heather burning. Obviously in the legitimate activity of burning heather in order to regenerate it no landowner could be expected to clear all the mammals from the area, and it is not intended that that should be part of the Bill's aims.
It cannot be emphasised too much that all the offences listed in the Bill are prefixed by the word "cruelly". The Bill and its exemptions are designed to enable the

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prosecution of people who deliberately and unnecessarily inflict unnecessary suffering on a wild mammal by the methods outlined in Clause 1.
I have been asked indirectly by the NFU to give examples of the kind of offence which would be prevented by the Bill. From the many details of offences which have been sent to me, I have chosen the four most typical. Two youths in Faversham, Kent, shot a hedgehog five times with an air rifle, played football with it and finally tossed it onto a bonfire to burn to death. The hedgehog, despite its appalling burns and gunshot wounds, was found alive the next day and had to be put down by a vet. The RSPCA prosecuted but, despite the chairman of the bench saying that it was the most horrific case of cruelty he had ever come across, was forced to withdraw the charges because it was not unlawful to act in that way towards a hedgehog.
Six Merseyside youths battered a wild rabbit to death in front of witnesses who testified that they had seen the assailants repeatedly throw a coat over the screaming animal and then kick it and beat it with sticks. The veterinary report showed that the rabbit died after its skull was totally crushed. The RSPCA secured a conviction, but, after an appeal to the High Court in November 1993, that was quashed because the rabbit was not deemed to be captured.
The mutilated bodies of at least seven foxes were found on a cricket pitch in Shirehampton, Bristol, last summer. It appeared that the animals had been set upon by dogs and then disembowelled and mutilated. The RSPCA mounted an investigation but was unable to bring a prosecution because, despite some evidence, what had happened was not illegal.
The final case occurred on 13th April this year. Three dead foxes were found on the site of a fire at Cuxton Quarry in Kent. One of the foxes was positioned as though sitting up with its head turned. The fox had wire around its neck and had been half throttled. A vet later confirmed that at least one of the foxes had been burned alive. Again, because it was a wild mammal, no prosecution could be brought. Those are the kind of cases that we seek to prevent by the Bill. I have been given many more examples of that type of mindless cruelty. We do not aim the Bill at the legitimate activities of farmers and landowners but merely at those offenders.
There is a real need for the Bill so that such cases can be dealt with. I am confident that there is no one in the House who would wish such abuses to continue. I hope that any speakers who are anxious about the Bill's wording will at least endorse its aims. I commend the Bill to your Lordships.
Moved, That the Bill be now read a second time.— (Baroness Nicol.)
5.55 p.m.
Lord Renton: My Lords, it is always a pleasure to follow the noble Baroness. I sometimes agree with her, but not often on party matters. On this occasion I agree with her in part only. I must confess I shall have to read her speech because I have not had the advantage of examining all the authorities she mentioned.
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First, I am against cruelty to animals. When I was invited to be vice-president of our local branch of the RSPCA I accepted without hesitation. But it is in the public interest that some animals should be killed. They are pests. They should be killed whenever they can be. I refer especially to rabbits, rats, mice, moles and foxes. I do not include hares. They are in a different category. That need to kill some mammals is one of the reasons why I have been, for many years, a member of the British Field Sports Society.
Therefore I am broadly in favour of the Bill. I am glad it will receive a Second Reading, as do nearly all Bills in your Lordships' House. I have however some serious misgivings as to whether, as drafted, it will achieve its intended purpose. Towards the end of her speech the noble Baroness was good enough to say that we may have to consider some drafting amendments. I hope that what I am going to say will be regarded as constructive, because those are the thoughts that I have in mind.
Unless the Bill is amended, it will have several unexpected results which are clearly contrary to the public interest, as I shall try to show. As there is no doubt that there will be a Committee stage, I will not weary your Lordships with too much detail, but perhaps I may mention some of the Bill's major defects.
Clause 1 creates a criminal offence of absolute liability, sometimes called strict liability. That is an offence where the prosecution does not have to prove the intention underlying the act which constitutes the offence, but may do so. It is a question of no criminal intent having to be proved under Clause 1. Even if a person kicks, beats, impales, burns, crushes or drowns a wild mammal accidentally or without intending to do it, or without intending to be cruel, it is assumed under the clause as drafted that that person is doing so cruelly.
In principle, we should not turn people into criminals when they have no criminal intent. Indeed in the many offences Parliament creates each year for one reason or another, it is very rare indeed for offences of absolute liability to be created.
If we had an all-night sitting, many examples could be given of the strange results of Clause 1 as it stands; I shall give just three. First, if one is walking over rough ground, say, in a wood where there is a great deal of undergrowth and one hits a rabbit with one's foot without knowing it is there—it might be a pregnant rabbit, or a rabbit that is simply hiding—and injures it unintentionally, under Clause 1 as it stands that could be held to be kicking it cruelly. Therefore criminal intent would not have to be proved.
I turn to my second example. If one is burning a large pile of garden or farm rubbish and there is a rat, a mole or even a hedgehog underneath, under Clause 1 that could be held to be cruelly burning a wild mammal, even if one did not know that a wild mammal was lying there.
My third example is more familiar. If a lorry driver, or the driver of any motor vehicle in a stream of traffic, runs over a hedgehog, whether he kills it or wounds it and whether he sees it or not, that could be cruelly

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crushing a hedgehog and an offence under Clause 1. I am sure that none of your Lordships intend that to happen, and you are all motorists!
In fairness to the mass of people in this country, whatever their way of life, Clause 1 must be amended. That can be done by adding the word "knowingly", or "intentionally", or "wilfully", which is a slight adaptation, to bring it into focus with the expression "cruelly".
Clause 2 is welcome because of its description of a number of circumstances in which it is to be assumed that no offence was committed under Clause 1. But, curiously enough, it refers to circumstances in which no offence would be committed anyway under Clause 1. For example, subsection (a) of Clause 2 refers to "taking" and that is not an offence under Clause 1. Subsection (e) refers to,
"any snare or trap for the purpose of killing or taking any wild mammal".
Again, Clause 1 makes no mention of the use of a snare or a trap. However, as Clause 2 would prevent many absurd and unfair prosecutions taking place it may be better to leave it in the Bill, although parts of it are unnecessary.
Unfortunately, in Clause 3 the word "wild" has been omitted before the word "mammal" where that word appears for the second time. That is, I think, merely due to a lack of caution. Unless the word "wild" is put in front of the word "mammal" where that word is used for the second time the Bill will apply to domestic animals which have either gone wild or were born in the wild. I do not believe that the noble Baroness and other promoters of the Bill have that intention in mind. One must mention, for example, that cats and dogs go wild, especially cats, and can do much damage to birds. Therefore, unless the word "wild" is inserted as I suggest in Clause 3 the clause will be outside the scope of the Long Title. That is not the way in which we legislate.
The Long Title states that this is:
"An Act to make provision for the protection of wild mammals from certain cruel acts; and for connected purposes".
Therefore, the word "wild" must appear where I suggest in Clause 3 unless we are prepared to legislate a nonsense.
I have said enough to show that although the intentions of the noble Baroness and others in promoting the Bill are valid and should be supported, the Bill as it stands will not do. I remind your Lordships that ours is a revising Chamber. We have a serious constitutional duty to correct faults that we see in Bills which come before us. We may be correcting drafting faults; sometimes we have a duty to correct faults of substance because they can create a nonsense too. We shall fail in that duty if we do not amend Clauses 1 and 3. Having said that, I wish the Bill well.
6.6 p.m.
Lord Clifford of Chudleigh: My Lords, I thank the noble Baroness for elucidating so well the clauses of this Bill. It is difficult to follow such a noble speaker as
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the noble Lord, Lord Renton. He has raised various points that I had intended to produce, but I should not have done so as well as he has. I, like so many of us, look forward to the Committee stage, when I am sure quite a few amendments will be put forward for debate.
6.7 p.m.
Lord Houghton of Sowerby: My Lords, this is an historic Bill. By any standard this is a notable occasion in your Lordships' House. It is a measure of wide public importance, having a bearing on social conditions and the attitude of mankind towards the animal kingdom. I would not say that we have been waiting for the Bill for 100 years but it has taken 100 years to get to where we are. The top half of the Bill was passed in 1911 but the protection of that Act related only to animals which could be called "companion animals" and similar species. It left the animal in the wild to the tender mercies of whoever might wish to attack them.
We have, therefore, a special responsibility. We have been entrusted with a Bill that has passed all its stages in the House of Commons. What are we going to do with it? It is very important for the House to consider where it thinks its duty lies. One knows the turmoil in the House of Commons and in the country about matters relating to this Bill but which are no longer contained in it. Indeed, the problem that we had to dispose of before we could see any light of progress in this direction was constantly an obstacle in the way of protecting animals in the wild.
The noble Lord, Lord Renton, tells us which clauses need amendment. That makes me rather concerned as to what will happen to the Bill. We are at the end of a Session and we must ensure—at least in my opinion we must—that a Bill of this kind and this importance, having gone through the fire and brimstone of controversy in the House of Commons and which comes to us with common consent, is regarded with special care.
I remind your Lordships that all this comes to us every time through what is known as the Private Member's procedure. No government want to take care of these matters or to allocate a Minister to accept responsibility for them. These Bills are left to the good sense and determination of the Private Member who seeks to change the law because nobody else will do it. It is astonishing that the questions which are relegated to what a former Prime Minister described as a "private initiative" in matters of legislation involve great issues of deep concern and moral importance. We should consider how long it took to deal with the issue of abortion—21 years. That was all dealt with under the Private Member's procedure.
We cannot amend this Bill in any sense which would require fresh consideration in the House of Commons. It worries me that that risk is still there. Should we not exercise a general forbearance and forego our critical role as we might employ it in other circumstances with meticulous care? I cannot say any more than that but all that we can usefully do with this Bill is to get it through unimpeded towards the statute book, because then we shall have put behind us a great deal of difficulty which has occurred in the past. We can then look at the

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problem in the light of the contents of the Bill, which provides standards for the treatment of animals in the wild which have not existed hitherto.
Therefore, I express anxiety about the future of the Bill. I believe that we should consider seriously the ancient Private Member's Bill procedure under which Bills are exposed to a kind of guerrilla warfare and sectional obstruction. All the knavish tricks known to politics and Parliament can be hurled at a Private Member's Bill. The amount of time spent by Parliament in that way is a disgrace because it is purely procedural.
What are the subjects which are relegated to private initiative? They are the subjects which no government want to touch and they do not want to touch them because they fear that they will not be able to get the Whips to control the vote. They do not want cleavages in the unity of the party brought about by subjects which are really not of commonplace political interest. But it is curious that the matters which go deepest in the public sensitivity are not politics at all in the concept of our procedures. They are the moral issues—the behaviour and attitudes which one hears too little about in the elected Chamber and our own.
That is my message. It will be a shame if we prolong the disparity between the protection given to certain animals and the exposure of others to the predatory instincts of man. It has worried a great many people when they find that a gang of youths can start kicking a hedgehog around as though it were a football and the hedgehog has no protection under the cruelty to animals legislation.
Therefore, I make that plea. We shall wait a long time if we try to go over this ground again. I should not like to say what will happen if there is a new Parliament. It may be that conditions will be more favourable to change than they are in the present Parliament. Nevertheless, one cannot foresee all that will happen.
I congratulate my noble friend Lady Nicol, who had the honour to introduce this Bill in your Lordships' House, which she did with great skill and understanding. We owe it to the more desirable motives behind the Bill to see it through and otherwise to establish whatever relationships are possible to overcome the procedural difficulties. We are up against a timescale and, if we leave the Bill to fall at the end of the Parliament, we shall not only regret that but we shall be criticised strongly for allowing it to happen.
6.17 p.m.
Lord Boardman: My Lords, this Bill causes me some problems. I have great sympathy for its objectives. Indeed, as the noble Baroness invited us to do when she introduced the Bill, I can endorse its aims; and I do that fully. I condemn, as the noble Baroness did, those examples of cruelty to wild animals which she quoted. They were horrid and I shall fully support anything that we can do to stop that.
The problem is that the Bill is poorly drafted. I must accept the criticisms of its draftsmanship which were made by my noble friend Lord Renton. I have some criticisms of my own but I shall not delay the House by giving them at any length. The Bill will provide a field
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day for lawyers. If the noble Baroness were sitting in judgment on those matters, I should accept without qualification her interpretation of them. But unfortunately, she will not be the judge of those matters. The noble Baroness said that cruelty is intended to mean so and so and so and so. Unfortunately, that will not necessarily be the interpretation of the courts. They will not listen to what the noble Baroness intended but will interpret the Bill in the way that it strikes them.
The noble Baroness said that cruelty applies only if the particular act is unnecessary. I shall refer again to that in a moment. The noble Baroness, when talking about one of the exceptions, said that it is "reasonable to assume". I am quite sure that I would share the view of the noble Baroness but unfortunately the Bill does not make that clear and would leave the interpretation to justices up and down the country who may have different views from hers or mine.
One of the examples given to us by the noble Baroness was that of the burning of heather. She said that it would be impossible to be sure that there was no wild mammal present at the time. The noble Baroness said that she believed that that was not intended to be an offence under the Bill. However, as I read the Bill, whether or not it was intended, it would be an offence. For that reason I have considerable concern about the Bill in its present form. As my noble friend Lord Renton said, it creates a strict liability. It is no excuse to say, "I didn't intend to do that"; indeed, it is a strict liability. That is a matter of fact, not a matter of law. I imagine that, on hearing such cases, magistrates throughout the country might take a different view of the matter on the interpretation of the facts to that put forward by the noble Baroness.
Perhaps I may give your Lordships the example of just one exception. I shall not bore the House with a whole list of them, but Clause 2(c) states:
"A person shall not be guilty of an offence under this Act by reason of—
(c) the unavoidable killing or injuring of any wild mammal as an incidental result of any lawful action".
I emphasise the word "unavoidable". The interpretation of that must mean that an unavoidable attempt is an exception, but that "avoidable" is not part of an exception; in other words, an avoidable killing would not be an exception.
Let us take a further example of someone going into a barn with a big stick and seeing many rats. He may hit one of them and may or may not kill it. To my mind, that would be an offence under the Bill as it stands. My concern is that such cases which we in this House would consider not to be caught by the Bill would or could be so caught by some of those rather extreme groups throughout the country which operate under various animal rights labels and which would be looking for cases where they could prosecute or cause prosecutions to be brought.
The Bill causes me considerable concern. Indeed, the noble Baroness said that to establish cruelty one only had to show that whatever was done—the killing—was unnecessary. I believe that a killing that was unnecessary under the Bill would be interpreted as being a cruel killing.

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Of course I accept the point made by the noble Lord, Lord Houghton of Sowerby that it would be a problem when so much work had been done on the Bill—and he carries out the intentions that many of us have—if it did not manage to get through. However, I believe that it would be a greater problem and, indeed, a failure of our duty in this House as a revising Chamber if we let it go through as a really bad Bill; in other words, a Bill that would cause massive problems throughout the country in the years ahead.
The Bill's intentions are excellent, but it could become a legal playground both for the legal profession and for those extreme and somewhat vicious groups of people who try to disrupt as greatly as they can the normal and proper conduct of many people. I believe that the good intentions in the Bill, as indeed in any other Bill, could be destroyed by bad laws. If it is not possible to amend it, I think that it would be a great mistake for it to go forward on to the statute book in its present form.
6.23 p.m.
Lord Soulsby of Swaffham Prior: My Lords, the House must be most grateful to the noble Baroness, Lady Nicol, for introducing the Wild Mammals (Protection) Bill. It probably comes as a great surprise to many, certainly to me, just what little protection there is and has been against wilful and wanton acts of cruel treatment of wild mammals. It is appalling to learn of some of the horrendous acts that may be perpetrated against badgers, with hedgehogs being used as footballs or, indeed, foxes and squirrels being burnt alive. We must strongly applaud the intent of the Bill.
However, as other noble Lords have indicated, there are concerns. There is a concern that the Bill appears to be one of strict liability; namely, that the prosecution would not have to prove that a person had any intention to behave cruelly, but merely to establish that he had in fact done so. The exceptions in Clause 2 may go some way to ease some of those concerns, especially where wild mammals are injured or disabled inadvertently by lawful activities, particularly in farming.
Examples of the latter have already been mentioned; for example, the burning of stubble or heather and the inadvertent burning of animals in the process, the crushing of animals or their lairs by farm machinery, or the amputation of limbs or other body parts by mowers or combines. In such cases, it would be wanton cruelty not to permit the animal to die humanely. It would be cruel to permit an animal to survive for any more time than it would take to dispatch it.
However, would that act of dispatch—for example, with a heavy stick used two or three times to kill such an animal—be cruel beating as defined in the Bill? It is well recognised that an expeditious way of killing a rabbit or hare is to dislocate its neck with a single, sharp blow. It is also recognised in some legislation—namely, the Animals (Scientific Procedures) Act 1986—that that is effective in animals up to a weight of one kilogram. Beyond that weight, more than one blow is possibly
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necessary. Again, one may ask: is more than one blow "cruelly" beating? I would suggest not. The intention is to put the animal out of its misery.
Some of the exceptions from the offence set out under Clause 2 seem to be non sequiturs. For example, Clause 2(a) allows the taking of a disabled wild mammal,
"for the purpose of tending it and releasing it when no longer disabled".
But would such treatment include the definitions in Clause 1—namely, "beating"—or any other similar act in the process of tending to it so that it may be released? Those issues are concerns for various people.
Even though the Bill is laudable in its intent, there are areas where some detailed attention to definitions will be required to make it wholly acceptable, especially to those whose lives impinge, particularly on a daily basis, with wild animals. I have in mind those in agriculture and working on the land who, in my experience at least, are fully conscious of the need to treat wild mammals in a humane manner.
The noble Baroness, Lady Nicol, has eased some of my concerns. For that I thank her very much. However, it is clear that a few still remain. They have been identified by various speakers. Whether the remaining issues are of enough concern to risk the loss of the Bill, as indicated by the noble Lord, Lord Houghton of Sowerby, is indeed a fine point. But, in that respect, I must say that I am impressed by the statements made by my noble friend Lord Renton; indeed, I bow to his greater experience and knowledge in such issues and hope that he will possibly lead the way in any amendment that may be necessary.
6.28 p.m.
Baroness Wharton: My Lords, I, too, should like to thank the noble Baroness, Lady Nicol, for introducing the Second Reading of the Wild Mammals (Protection) Bill. I am joint honorary secretary of the All-Party Animal Welfare Group. As such, I receive a considerable amount of mail on general welfare matters. It is quite clear to me that, right across the spectrum of our society, there is an enormous concern for the welfare of our animals, both domestic and wild.
I have heard a rumour in the House that there might be a concerted effort to kill the Bill. I have also gained the impression that some may think that the Bill under discussion is the one dated December 1994. As noble Lords know, Clause 2 of that Bill referred to dogs killing and injuring wild animals. However, as we know, we are not discussing that Bill tonight.
Had the original Bill‹—I have to say this—been before us today, I probably would have supported it even knowing that it could not have possibly won the support of both sides of either House, and would eventually have been lost through lack of parliamentary time. The honourable Member for Dumbarton has, in another place, worked extremely hard to find a compromise and it is this Bill, dated 17th July 1995, that we have before us today. As the noble Baroness has already outlined, this is a much amended version of the original with all references to dogs and hunting removed. I hope that that should make it more acceptable to the field sports lobby.

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I add at this juncture that my mother hunted all her young life in the West Country. After she married and went to live in South Africa she continued to hunt but eventually persuaded her local hunt to switch to drag hunting. That was how I enjoyed my riding most winter weekends during the school holidays. Surely it is the thrill of riding to hounds rather than the kill at the end which is the more enjoyable.
What I find difficult to understand is Clause 2(e), which exempts from prosecution the use of traps and snares but does not define either. Having seen animals trapped by both these methods, all I can say is, once seen never forgotten. The deaths are never quick and painless and it is so often the job of RSPCA inspectors and veterinarians to destroy the animal as humanely as possible. Snares and traps are supposed to be checked at regular intervals but in far too many cases they are left unchecked for days. Sometimes it is ordinary members of the public out walking who come across snared animals often still alive and struggling. Even the dead ones are distressing to see. One does not need a vivid imagination to feel horror at the manner of their deaths. The running snare is still legal. I think it is a cruel method of capturing a wild animal. For myself I would like to see it outlawed.
The Protection of Animals Act 1911, makes it an offence to kick, beat or inflict pain or suffering on a domestic animal. Surely it is illogical that the same protection is not afforded to wild mammals. To my mind, cruelty is the same in either case and the law should not differentiate between the two.
RSPCA inspectors, and sometimes the police, are regularly called out to deal with wanton and deliberate acts of violence and cruelty against foxes, squirrels, hedgehogs and the like, knowing that they cannot bring the culprits to court. Many offenders just laugh and say they were having a bit of fun. What I find frightening is the total disregard that certain youngsters—and, I hasten to add, some adults—have for the pain they inflict on animals. There needs to be much better education at a young age to teach children to respect and appreciate other forms of life.
Another word deleted from the original Bill is "torture". I looked that word up. It is defined, amongst other things, as,
"to deliberately inflict pain and suffering".
Is that not what we are talking about? Again, I suspect that this was a compromise to satisfy the field sports society in the hope of gaining its support for the Bill.
The majority of people in this country insist that our wild animals enjoy the same protection as our domestic animals have and that offenders who deliberately—I stress the word "deliberately"—cause harm are swiftly dealt with by the courts. The time has come for parliamentarians to take note and act accordingly.
I would like to see this Bill on the statute book as soon as possible but I note the observations and the concerns of the noble Lords, Lord Renton and Lord Boardman. I hope that honourable Members of both Houses will not delay the Bill's passage through Parliament. There is much more that I could say but I will not detain the House further. This is half the Bill it originally was, but it is far better than no Bill at all. I
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stress that millions of people have supported it and they have a right to have their voices heard now. I ended my opening speech to the BVA congress with a quote from Gandhi and I do not apologise for using it again. He said,
"The greatness of a nation and its moral progress can be judged by the way its animals are treated".
6.34 p.m.
Lord Stanley of Alderley: My Lords, I support the object of this Bill. No one should be unnecessarily cruel to wild animals. I am grateful to the noble Baroness for all she has done to make sure that the Bill's objectives are clear, and for the way she has explained the purpose of the Bill and, more importantly, what the Bill is not intended to do. As she knows, I have written to her about my particular anxieties, which mainly concern agriculture. I am particularly grateful to the noble Baroness for her assurances which she gave in her opening speech.
However, like my noble friends Lord Renton, Lord Boardman and Lord Soulsby, I would like her to address the matter of strict liability. As I see it, the prosecution would not have to prove that the person had an intention to behave cruelly but merely to establish that he had done so. I am not a lawyer and I know that the noble Baroness is not, but that seems to me somewhat worrying. Valuable as it is to have the noble Baroness's assurances, which I hope my noble friend Lady Blatch will comment on in her position as Home Office Minister—perhaps in this case I consider her as the referee—those assurances are nothing like as good as they would be if they were put on the face of the Bill. However, to do that, as the noble Lord, Lord Houghton, said, would mean that the Bill would have to go into Committee, be amended, be sent to the Commons and then be sent back to your Lordships.
I believe—I hope I am not wrong in this—that the noble Baroness would not object particularly to the Bill being amended if it was clarified. I hope that agreed amendments could go through your Lordships' House at great speed. However, the problem is whether the Commons would be able to give time to debate your Lordships' amendments and agree them. If they did not, the Bill would be lost. I, and I understand many of your Lordships, would regret that greatly. I will go further and say that I think it is probably wrong for your Lordships to do that for a number of reasons which I shall not bother to spell out.
The dilemma which I and your Lordships face is whether to accept the noble Baroness's assurances and—I hate to say this- -trust to luck that they carry weight in the courts or to amend the Bill and possibly lose it because of lack of time. Without any doubt whatsoever the best way forward in my opinion is for the Bill to be amended and for it to be returned to the Commons and come back so that we can get it on the statute book preferably this Session and certainly early in the next one. However, that would require much help from all parties concerned and also the Government. I

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sincerely hope for your Lordships' sake and the Bill's sake that that will be possible. The Bill and the noble Baroness deserve such a course.
6.37 p.m.
Lord Willoughby de Broke: My Lords, like other noble Lords who have spoken tonight, I, too, support the principle behind the noble Baroness's Bill. I believe in the principle that wild animals should be afforded protection against the cruelties which she so graphically described. However, there are ambiguities which I believe need to be addressed, as the noble Lord, Lord Renton, and my noble friend Lord Boardman have mentioned. I do not think it is satisfactory as it stands. I refer to certain of the definitions. In spite of what the noble Baroness has said, I do not believe that the terms "cruelly beating" or "cruelly crushing" are satisfactory and I believe that they could be used on occasions to prosecute farmers for perfectly ordinary activities, or activities which may be beyond their control.
I believe that the necessary exemptions in Clause 2 would be much clarified if the distinction between cruelty and suffering were properly defined. Repeatedly and in varied surroundings, including Parliament and the courts, "cruelty" is used where "suffering" should be used. The difference is that "cruelty" involves volition whereas "suffering" does not. It follows that the establishment of cruelty depends on establishing an intention to inflict suffering, or delight in, other persons' or animals' suffering. Two levels of proof are required: first, that suffering (incidental, accidental, unnecessary, or necessary) occurred; and, secondly, that there was an intention to inflict such suffering, for whatever motive. I wonder whether a definitions clause might usefully be added to the Bill.
I am at one with other noble Lords who have asked for a Committee stage so that the doubts which have arisen may be addressed and the Bill amended. Like my noble friend Lord Stanley of Alderley, I hope that that can be done speedily. I hope that a Committee stage would allow the Bill to be amended so that we can effectively protect wild animals from the horrors that have been described without criminalising normal rural and agricultural activities.
6.40 p.m.
Lord Mancroft: My Lords, I have great pleasure in welcoming the Bill. As deputy chairman of the British Field Sports Society it is incumbent upon me to say that the society is as firmly behind the principle of the Bill as all noble Lords who have spoken this evening. We are all concerned about animal welfare. Had the Bill been introduced as it was originally drafted I and many noble Lords on all sides of the House could not have supported it because of the provisions it contained that affected field sports. Those provisions were sensibly dropped in another place, and I understand that the Bill's more limited and worthwhile aim is to deal with those particular acts of dreadful cruelty which we would all like to stop.
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It may be useful to look back to see what has brought about the Bill. The Protection of Animals Act 1911 makes it an offence to be cruel to domestic animals or to wild animals, but only when they become captive. It is argued that that leaves a major lacuna in the law and that wild animals deserve the same protection as their domestic counterparts. The argument is a seductive one. At first sight there seems no reason why wild and domestic animals should not be treated in the same way by the law, particularly when one considers the horrific cases of cruelty which have been inflicted and which the noble Baroness mentioned in her opening speech. However, closer examination reveals that the idea of equal protection in law is flawed, for a number of reasons. That certainly does not mean that wild animals should go unprotected or that the Bill is wrong in principle. However, we need to consider whether the level of protection is the right one.
It is obvious that wild animals cannot receive exactly the same protection as domestic ones. First, man has dominion over and responsibility for domestic animals. Not only may we not actively be cruel to our cats and dogs, for instance by beating them excessively, but acts of omission may also add up to cruelty. We must feed and water our dog or cat or rightly face the consequences. However, it is difficult to see how any of us can be held legally responsible for the activities of wild animals until we come into contact with them.
Secondly, society does not treat wild and domestic animals in the same way. The logic of the argument put is that a wild rat should be protected in the same way as a pet rat. But if wild rats get into our houses we call in someone who usually poisons them. By contrast, if a pet rat is ill we take it to the vet where, if it needs to be put out of its misery, it will be administered anaesthesia. An attempt to poison the rat to save the vet's fees would be a crime under the Protection of Animals Act. Therefore, it becomes obvious that the different treatment of animals under the law is not a major deficiency but is a reflection of the necessarily different treatment of wild and domestic animals.
If we look at the range of wild animals that would be affected by new protection of one kind or another we see that most of those animals need to be controlled. There might be argument about whether a form of control is acceptable, but there ought to be common ground that to some degree or other deer, foxes, rabbits, mink, or even sometimes hares, may need controlling. The need to exercise that control is one of the compelling reasons why wild animals cannot be protected in the same way as domestic ones.
It is often alleged, as my noble friend Lord Soulsby mentioned, that wild animals are not protected under the law. That is not true. Parliament has progressively outlawed particular forms of pest control when it was shown that they were unnecessary or cruel. If we look at foxes, for instance (which is useful because it is often claimed that the fox is the least protected of our mammals), poisoning was outlawed under the Protection of Animals Act 1911. Under the Pests Act 1954 traps have to be approved by the Ministry of Agriculture, which in 1956 removed approval for the appallingly cruel gin trap. Gassing of foxes was effectively

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outlawed by the Food and Environment Protection Act 1985. Self-locking snares were banned under the Wildlife and Countryside Act 1981. Those measures were all agreed; they were reached by consensus. That is the kind of sensible, incremental approach to wildlife protection that we should be taking.
Some wild mammals are, or were originally, protected on grounds of rarity. That is a case where blanket protection is appropriate, and there is no argument about that. Badgers were protected in 1973, otters in 1978. But those animals were given blanket protection of a different kind, extending to their habitats as well as to the animals themselves, for very different reasons. Again, there was political consensus about the measures taken.
The point of difficulty arises in the grey area between when an animal is wild and when it is captive. The courts have interpreted the definition of "captive" narrowly, so that in the words of the leading case in the Court of Appeal, Rowley v. Murphy,
"a mere temporary inability to get away was not a state of captivity".
That interpretation is necessary if any form of pest control is to be conducted, because at some stage it will involve an act of force against a wild animal. If, for instance, a rabbit was held to be captive at the point when it was removed from a net and its neck broken, that perfectly humane and normal form of rabbit control could become an offence.
The narrow interpretation of captive has led some magistrates' courts to decide, for example, that kicking a hedgehog is not an offence. Plainly we would all rather that such acts were not permitted by the law, but we need to find ways of dealing with such cases while permitting lawful country activities.
We should keep the situation under the existing law in perspective. First, the courts must make sensible use of the existing law. One case has been cited where a magistrates' court held that nailing a squirrel to a tree was not an offence because the squirrel was not captive. Frankly, many of us consider that that case was wrongly decided. If an animal is nailed down to something it is obviously suffering more than a temporary inability to get away. Secondly, these are not common cases. It is obvious to us all that hedgehog kicking, fortunately, is neither a national sport nor a great problem. Indeed, it is arguable that the kind of person who throws live hedgehogs on to fires is unlikely to be deterred by the criminal law. However, that does not mean that Parliament should not try to deal with the problem. But in so doing we must keep a sense of proportion, and in particular ensure that legitimate activities are not curtailed.
As amended, the Bill makes it an offence to cruelly kick, beat, impale, burn, crush or drown a wild mammal. That provision was the result of doubtless well-intentioned but undoubtedly eleventh-hour agreement in another place. It was intended to deal with peculiar acts of torture, such as nailing a live squirrel to a tree or throwing a hedgehog on to a bonfire. The British Field Sports Society played a part in that agreement, welcomed the Bill and supported it at Third Reading. We want to see it on the statute book; we said so at that time and we say so again today.
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However, all sides must admit that the amended clause was drafted rather hastily. At that time we did not have the benefit of detailed legal advice. Over the summer a number of anxieties were put to us, which have been mentioned by noble Lords this evening, from farmers, field sportsmen and others about the possible effects of the Bill. We hoped to reassure them, but we felt that it was incumbent upon us to take legal advice. We received two separate legal opinions; from Peter Birts QC and Anne Rafferty QC, the Chairman of the Criminal Bar. Much to our alarm, and to our disappointment, both opinions stated that the Bill could put ordinary farming, pest control and sporting activities at risk.
Mr. Birts said in his opinion:
"The Bill must be amended if countrymen are not to be exposed to the risk of successful prosecution".
Miss Rafferty said:
"The Bill [is] an unsatisfactory and vague piece of legislation … [which] would introduce offences which are far easier to prosecute than they would be to defend. The threat it poses … should not be underestimated".
They gave examples of activities which could be put at risk, some of which have been mentioned this evening. More than one blow to the neck of a rabbit could be interpreted as "cruel beating". Pouring corn on to a rat in a grain silo could be "cruel crushing". A rat, rabbit, hare or fox could easily be "cruelly crushed" in the jaws of a dog or hound.
As we have already discussed this evening, a person would not have to intend cruelty. As presently drafted the offences appear to be ones of strict liability. It would be for the courts to decide whether cruelty was caused. In doing so they will have to ask whether the activity was necessary. While countrymen may understand the necessity of certain farming activities, field sports and pest control, those views may not be shared. The problem is the uncertainty caused.
I accept entirely that the noble Baroness, who I understand has seen both opinions, does not intend any of the scenarios that I have set out. But equally I hope that she will accept that we must respond to the independent advice given to us. To take legal opinion and then to ignore it would be extraordinarily irresponsible. I and my colleagues in the British Field Sports Society now find ourselves in an extremely difficult position. We would like the Bill; we wish to seek agreement. The chairman of our society, Dr. Charles Goodson-Wickes, who secured agreement with the promoter of the Bill in another place, is particularly anxious that I make that clear to your Lordships this evening. But it seems that some amendment will be necessary, perhaps focusing on including a mental element in the offence and creating careful new defences for pest control and farming operations.
It is of concern that parliamentary time for this Bill is desperately short. But I do not believe that your Lordships can abdicate the responsibility as a revising Chamber to put legislation right. Perhaps I may ask noble Lords to throw their minds back to the speed with which the dangerous dogs legislation went through this House. That type of legislation rushed through is always

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a disaster. Indeed, the Bill's promoter in another place, the honourable Member for Dumbarton, said in Standing Committee:
"Much has been done in fewer than 24 hours. Perhaps a record will be set for putting legislation on the statute book, although it might not be used as a template for the future".—[Official Report, Commons, Standing Committee A, 13/7/95; col.24]
I hope not. I have to say that the Bill's promoter in another place could have secured agreement at a much earlier stage. I say this to the noble Lord, Lord Houghton, and the noble Baroness, Lady Wharton. He sat on the Bill for three-and-a-half months before seeking agreement on it. He chose to leave it to the last possible moment. That delay now places all of us in a very difficult position. If the Government could find time to help the Bill on to the statute book, that would be widely welcomed. But if, as I fear, that is not possible, I earnestly hope that all sides will agree to a Bill to be introduced early in the next Session. But we cannot allow bad Bills on to the statute book.
Only two of the verbs contained in Clause I are to be found in legislation which protects domestic animals—the Protection of Animals Act 1911. I refer to "beat" and "kick". It may be questioned where the others came from, and why. Regrettably—and I mean no disrespect to the Members in another place whose intentions were good—it appears that the clause was cobbled together in a hasty corridor deal, creating a kind of shopping list of criminal offences. A particularly striking example is the verb "to crush". The reference was inserted at the insistence of the Labour Party's animal welfare spokesman, Mr. Elliot Morley, on the grounds that motorcyclists should be prevented from deliberately running over hedgehogs. Is it seriously thought that the Bill now has such an effect? How is the law to be determined between a rider who accidentally crushes a hedgehog and one who does so deliberately? Absurdities have been created. I fear that, however well-intentioned the agreement, this is no way to legislate, particularly when it risks making criminals out of presently law-abiding citizens.
I am particularly cautious about the possible uses to which the new legislation could be put in view of the animal rights groups, as my noble friend Lord Boardman said. As the noble Baroness, Lady Nicol, suggested, were the Crown Prosecution Service alone to be able to launch prosecutions in the public interest, our concerns would be diminished. But the animal rights groups such as the League Against Cruel Sports and, sadly, now the RSPCA have taken out numerous private prosecutions, aware that even if the result is an acquittal, discharge or nominal fine, the public relations impact of the prosecutions still makes them highly desirable. Those are not reasonable prosecutions. The recent legislation to protect badger setts has been used to this effect again and again, despite assurances that were given during the passage of the Bill through both Houses.
It is for those reasons, despite my support for the aim of the Bill, that I must take seriously the advice that we have received and consider the need for amendments. I have no wish to limit its ability to deal with the dreadful acts of cruelty against which I know it is aimed. But it
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must be a workable measure which has support in the countryside. The Parliamentary Under-Secretary for State for the Home Office in another place stated in Standing Committee:
"The Bill will no longer be targeted towards legitimate country sports and farming practices". [Official Report, Commons, Standing Committee A, 13/7/95; col.22.]
But imprecise legislation can and does affect targets other than those at which it is aimed. I hope that the consensus which was belatedly constructed in another place will remain intact because a controversial Private Member's Bill will never get on to the statute book. I believe that we are nearly there. I am quite sure that if we all work together we can produce a Bill which will be a great step forward in the promotion of animal welfare; but we are not quite there yet.
6.55 p.m.
Lord Beaumont of Whitley: My Lords, if the Bill had come before your Lordships' House in its original form, I should be making a long speech, possibly not from the Front Bench but from the Back Bench, although my party as a whole is committed to opposing many of the more cruel hunting sports. I should have managed to annoy probably everyone on both sides of the arguments because I have spent something like 40 years thinking about this rather difficult problem, ever since I used to go hunting with the noble Lord, Lord Dacre, in the Bicester countryside during the war.
However, we now have a Bill which is manageable, is agreed, and to which every Peer who has spoken has agreed in principle. It is quite clear from the debate this evening that the future of the Bill depends on whether amendments, which I believe everyone agrees are probably needed, are so important as to imperil the progress of the Bill through Parliament this Session.
Having listened to the arguments—and to most powerful ones deployed by the noble Lord, Lord Mancroft—I am not convinced that it would be that bad a Bill. The noble Lord, Lord Boardman, said that if it were a really bad Bill we should not agree it. I entirely agree with him. I have seen enough short, badly drafted Bills passed through your Lordships' House in the past 25 years to know how difficult that can be. However, I am not totally persuaded by the arguments that I have heard. I remain of the view—I believe that my party does so too—that the Bill ought to be dealt with and amended if we possibly can. Most noble Lords are waiting to hear whether the noble Baroness, Lady Blatch, can give us any comfort as to how we might be able to obtain what almost all of us in the House want.
Having said that, I wish the Bill well. If there is question of amending it, we shall do our best to do so as expeditiously as possible and to give the Bill as fair a wind as possible.
6.59 p.m.
Baroness Mallalieu: My Lords, my noble friend Lady Nicol has in the past done many services for the environment, birds, wildlife and conservation. Her record on those issues is, I believe, universally admired on all sides of your Lordships' House and far beyond Parliament. In introducing this Bill to provide protection

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for wild mammals from gratuitous acts of violence and torture she performs a valuable service to wildlife, the countryside and the improvement of animal welfare generally. We are all grateful to her.
Support for the principle of the Bill has come from every side of the House. We are agreed that there can be no justification for a loophole in the law continuing to exist which exempts a non-captive animal from legal protection against deliberate cruelty. As my noble friend Lord Houghton of Sowerby said, the closing of that loophole has been a long time coming. That, in part, must be because the measure has so often been combined with other more controversial measures and has therefore failed. Perhaps I may pay tribute to the honourable Member for Dumbarton in another place for making the concessions and the changes which have now permitted the Bill to come before your Lordships' House.
From these Benches, the intention of the Bill—namely, the criminalisation of deliberate acts of cruelty towards wild mammals—is strongly supported. We shall do all we can to ensure that those intentions are translated into law as soon as possible. While no noble Lord has spoken in disagreement with the view I have just expressed, a considerable number of your Lordships have expressed serious reservations about the present drafting of the Bill. As my noble friend Lord Houghton said, it is unfortunate, to say the least, that it comes to the House at the 11th hour before the end of the Session.
Second Reading is perhaps not the time or the place for a detailed analysis of the clauses of the Bill, but some of the matters which have been raised by noble Lords—in particular the noble Lord, Lord Renton, in relation to Clause 1—cause me as a criminal lawyer great concern. The Bill is silent as to mens rea. An intention to behave cruelly need not be proved. The offences created consist in doing the forbidden acts or causing or procuring or permitting them to be done, so, as others have said, the Bill appears to create offences of strict liability. As I understand it, the word "cruelty", according to the case law and the case to which the noble Baroness referred. Barnard v. Evans, means a deliberate as opposed to an accidental act which causes unnecessary suffering.
Perhaps I may give an example of how I am afraid Clause 1 might operate. I am walking my dog and I let it off the lead in a place where there are rabbits about. It chases a rabbit into a pond and the rabbit drowns. Under the Bill as drafted I have caused the rabbit to drown as a result of my deliberate act and it has suffered unnecessarily accordingly. There is no defence that I can see to avail me under the Bill as it is drafted. The suffering to the rabbit was avoidable. It was the result of my action, and if someone chooses to prosecute me, whether it is through the Crown Prosecution Service or whether it is a private prosecution, I shall be guilty of a crime.
Other noble Lords, in particular the noble Lord, Lord Soulsby of Swaffham Prior, have referred to other features which troubled me, and still do, despite the reassurance which my noble friend has helpfully given me in relation to the effect on farming and pest control. I am troubled by Clause 2(a) which appears to provide a defence to someone who,
"cruelly kicks, beats, impales, burns, crushes or drowns,"
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an animal at the time he is apparently taking it in order to tend it and care for some disability which it suffers, with the intention of then releasing it when it is no longer disabled. The situation posed by that defence is inconceivable. It may be said that an illusory defence of that kind does no harm, but it is precisely additions of that kind to Bills of this nature that I as a lawyer know very well can later create considerable difficulties of interpretation.
I am also troubled about the uncertainty of other parts of Clause 2. If I have to decide whether I shall dispatch an animal which seems to be injured, I have to stop and ask myself whether there is a reasonable chance of the animal recovering. If I get it wrong, I may not have a defence under the Bill. Similarly, the unavoidable killing of a wild mammal is a highly subjective matter. It may seem to me to be necessary to kill the rat in my barn, but there may be others who take the view that I could perfectly well deal with it by opening the doors and shooing it out. There is an uncertainty which troubles me greatly in the present drafting.
One point which has been raised tonight is not one which occurred to me, and I disagree with the view expressed by the noble Lord, Lord Renton. It concerns the Long Title of the Bill and Clause 3. That does not seem to me to create any difficulties.
But that said, I believe that it is possible to produce a good, clear, precise and short piece of legislation to deal with the target which concerns us all. It could be done relatively easily by a small number of amendments. As my noble friend Lord Houghton said, this House has been put into an almost impossible situation. It is being pressurised to return legislation to the other place which it has not been able properly to consider because of lack of time and under threat of losing the Bill—which we all want to see in some form on the statute book. It seems to me wholly wrong that the House should be used as a rubber stamp. I am sure that we would all be anxious to avoid that.
I understand that the promoters of the Bill in another place took extensive advice on the drafting from the department of the noble Baroness, Lady Blatch. If, as appears to me and to others who have expressed their views tonight to be the case, there are flaws in the drafting which could and should have been corrected before, I am bound to say that the Home Office must bear heavy responsibility for those defects. By agreement and consultation elsewhere they could and should have been sorted out before the Bill came here. I say that not, I hope, in a discordant spirit, in view of all that has been said by way of agreement tonight, but the Home Office has some past history in recent years of producing bad legislation. I have only to cite the Dangerous Dogs Act 1991 in support of that argument.
The dilemma has been put to us squarely by the noble Lord, Lord Stanley of Alderley. If noble Lords feel that the measure cannot be returned to the other place without amendment, I hope that in view of the history of the matter, the noble Baroness will do all she can to make sure that time is made available to ensure that the amended Bill reaches the statute book. It is within her power to do so and we on these Benches will do all we can to assist. No one—I repeat no one—wants the Bill to be lost.

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There is one matter to which I wish to refer in conclusion in relation to the history of the Bill before it reached this House. It has been estimated that something of the order of £2 million has been spent by three organisations anxious to see the original Bill reach the statute book: the RSPCA, the League Against Cruel Sports and the International Fund for Animal Welfare. It has been estimated that approximately half of that sum was spent in direct lobbying of Members of another place, with the printing of personal letters addressed to them by constituents, and the other half on advertising. Some of that advertising by the International Fund for Animal Welfare has been subsequently condemned by the Advertising Standards Authority. One advertisement in particular compared those who engaged in field sports with a well-known mass murderer.
That money had presumably been given by members of the public, both here and abroad, anxious to see real improvements in animal welfare. The Bill which is before the House, the principal aims of which have total support across the board, could have been produced without any of that expenditure. Is it, I ask, too much to hope that in the future the large sums of money given by members of the public for animal welfare will be used in ways which will bring about a real improvement in those areas in which, I think we can all agree, it is desperately needed and in which it could be achieved?
I have absolutely no difficulty in providing three quick suggestions. Millions of animals are slaughtered every year in this country, yet we have no proper training qualification requirement for slaughtermen. Animals are injured on our roads daily and large transporters with sheep, cattle, horses and pigs overturn in accidents. The provisions for dealing with those casualties are woefully inadequate. There are often long delays. Some of our livestock husbandry methods are wholly unsatisfactory, in particular those in relation to poultry.
So much is needed. So much could be done by co-operation. Surely this is the way forward for animal welfare. I hope that that co-operation will start tonight with the speech that the noble Baroness is about to make. I hope for some indication from her that this Bill can, first, be made into a good Bill in this House; and then that it may be given time in another place so that it may reach the statute book as soon as possible.
7.11 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, the Bill that is before us today completed its Committee, Report and Third Reading stages in another place in the course of three consecutive days immediately prior to the Recess. That was perhaps in keeping with the somewhat unusual course that consideration of the Bill had taken in that House.
The Bill's sponsor, on introducing the Bill in another place, indicated that his primary intention was to outlaw field sports. Subsequently, he chose to drop the contentious clauses relating to hunting and to the introduction of a licensing regime for the use of snares and to concentrate instead on outlawing a range of cruel
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acts in relation to wild mammals—but in a way which would not impinge on country sports and legitimate forms of pest control.
Noble Lords will be aware of the Government's neutrality on the issue of field sports. We have maintained this line throughout the passage of the present Bill, making clear at the same time that we could not support provisions which might affect the use of established forms of pest control and farming practices.
I understand that discussions between the Bill's sponsor and other interested parties led to the amendment of the Bill into the form which appears before your Lordships today. It now seeks to outlaw certain specified acts committed "cruelly" in respect of wild mammals but it contains a number of exemptions, including specifically for pest control measures.
The Government's understanding in the summer was that all Members of the Committee which considered the Bill in another place, including those who specifically support the preservation of field sports, regarded the Bill as acceptable. That is to say, there was general agreement that the Bill filled a recognised gap in the protection afforded to wild mammals—the Protection of Animals Act 1911 applies only to captive and domestic animals—but did not affect either pest control or field sports.
We have heard from many noble Lords, but in particular from my noble friend Lord Mancroft, that the views of the supporters of field sports have changed on this latter point following legal advice they have received which suggests that field sports may be caught by the formulation in this Bill. Those concerned on this point must form their own conclusions and decide what the appropriate reaction to the Bill before the House should be. The Government, as I said, have been strictly neutral on the principle of field sports, and that will remain our position.
My noble friend Lord Stanley referred to concerns that he had raised with me on the part of farmers. My noble friend Lord Mancroft also expressed concerns about pest control, as did other noble Lords. The Government are satisfied that nothing in the Bill would prevent the continuation of normal humane methods of pest control. I am unable to comment on many of the technical points that have been raised in relation to this Bill. Nor am I able to help the noble Lord, Lord Beaumont, who asked specifically how amending this Bill would impact on the timetable. That is not a matter for me; it is a matter for the other place.
7.15 p.m.
Baroness Nicol: My Lords, I may not have been kicked, beaten or impaled, but I feel distinctly crushed. We have a problem. I can quite understand the anxieties that were raised by a number of noble Lords.
First, I have not seen the legal opinions to which the noble Lord, Lord Mancroft, referred. Even if I had seen them, I doubt whether I should have been able to cope with them in the time available. I hope to see them before we proceed much further.
I had intended to try to answer all the points raised by noble Lords. I feel that some were unreasonably

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exaggerated. The noble Baroness, Lady Blatch, is right. Some of us felt that the Bill was perfectly acceptable and that, provided one was engaged in a legitimate act, most of one's defence would be secure. Obviously, however, I must take on board all the comments that have been made. I wish to sit and study the various points raised.
I am very worried about the timetabling, mentioned by the noble Lord, Lord Houghton. I agree with the noble Baroness, Lady Wharton: perhaps half a Bill is better than no Bill at all. But it has to be half a Bill that will work. We must therefore try to discuss with the Government what measures can be taken if we feel that the Bill must be amended. I am still hoping that that can be resisted. If it cannot, I hope that we can discuss with the Government how they can help the Bill forward.
Along with my noble friend Lady Mallalicu, I feel that the Home Office must bear some responsibility. I do not think that the corridor conversations mentioned by the noble Lord, Lord Mancroft, would have been engaged in. But there is no doubt that the Home Office was involved in the Bill's drafting. If it turns out to be as flawed as some Members of this House believe, then there is responsibility on the Home Office to help bring the Bill forward. I believe that that can be done. We have time. I understand that we are to be here until 6th November, but I am not aware of the position in the other place. I know that as a Private Member's Bill the measure has very little chance. However, there is nothing to prevent the Government picking it up and taking it forward, with any necessary amendments, as a
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government Bill. Under those conditions time would not be a problem.
Lord Renton: My Lords, I am grateful to the noble Baroness for giving way. If I may say so, she is being very realistic. Perhaps I may console her by saying that in my opinion, having listened to all the speeches, only two amendments are vitally necessary. One is to Clause 1, so that the offence becomes an intentional offence instead of a merely automatic one; the other is to Clause 3, to insert the word "wild", so as to bring that clause within the Long Title of the Bill. Other amendments could well be thought of, but in my opinion those are the only two that are vital. I hope that that helps the noble Baroness.
Baroness Nicol: Yes, my Lords, it helps to a certain extent. But, as the promoter of the Bill, I feel it is my duty to press it forward, even if we have to do so without amendment at all. It is very difficult for me to say that I shall engage in something that will wreck the Bill unless I can receive some more comfort from the Government, which does not seem to be forthcoming.
I repeat that I must go away and read all the points raised, take advice on them, and have discussions with the Government. We shall then see what happens. I understand that the Committee stage is presently arranged for 31st October. We may or may not be able to keep that date. In the meantime, I hope that the House will give the Bill a Second Reading. I commend it to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at eighteen minutes past seven o'clock.