Service of notices

HL Deb 16 November 2000 vol 619 cc465-516

22. Section 70A (service of notices) applies in relation to notices given under this Schedule as it applies in relation to notices and other documents required or authorised to be served or given under the 1981 Act.").

On Question, amendments agreed to.

[Amendment No. 217 not moved.]

Clause 72 [Limestone pavement orders: offence]:

Lord Hardy of Wath moved Amendment No. 218: Page 48, line 35, at end insert ("together with the confiscation of any vehicle which is used to assist in the committing of such an offence"").

The noble Lord said: My Lords, this Government have cause for pride in fulfilling that part of their election pledge which was to be tough on the causes of crime. Here we have a case to be tough on crime itself; indeed, it is a rather nasty crime. Some noble Lords may see a similarity between this amendment and Amendment No. 191, but they are different.

I do not seek to alter the financial penalty in the Bill but the step I propose seems a particularly appropriate one to deal with this theft. This afternoon my noble friend read a commendable Statement which envisages the building of hundreds of thousands of new homes. Those homes are needed but many of the owners of those new homes will want to build rockeries in their gardens. That constitutes a ready made market for this theft. The limestone pavements of these islands are shrinking due to that theft, which could not occur if the people carrying it out did not have a motor vehicle, probably a 4x4, in which to transport the stolen limestone.

The Government will say that they have responded to this concern as they have included in the Bill a maximum fine of £20,000 for this offence. That is a significant sum. However, if someone is charged with stealing what will appear to be £5, £10 or £20-worth of rock, no court will impose the maximum fine for that offence. If that did occur, it would be regarded with astonishment. The only way to safeguard the remaining limestone pavement is to ensure that this theft is stopped. I hope that the amendment will be speedily accepted.

I do not want to speak for too long but my next point is relevant to this Parliament. Some 20 years ago I learnt that virtually every peregrine falcon's nest—there were fewer peregrine falcons then—was being watched by thieves who intended to take the fledglings at an appropriate moment as the going rate was £600 per bird. At that time if thieves were caught with a stolen bird they were fined £2—a derisory sum.

The Royal Society for the Protection of Birds gave me a draft Bill one day. The following day I obtained sufficient signatures from all parties. The following Friday the Bill passed through all its stages in the other place in, I believe, 55 seconds. The Bill was then piloted through this Chamber by the late Lord Cranbrook, one of the most distinguished conservationists of the previous century. Noble Lords will be aware that his son is also a distinguished conservationist. The late Lord Cranbrook piloted the Bill through this Chamber in a similar period of time and it was enacted with astonishing speed. I believe that it set a record for a Bill to reach the statute book. I wish that we had achieved that with a few more Bills over the past few months. The Bill was enacted and the penalty for that theft was massively increased. The courts did not always impose the increased penalty but the Bill responded to a need.

The need to tackle the theft of limestone pavement is equally urgent, at least in a geological sense. Hundreds of thousands of houses need to be built in this country, preferably on brownfield sites. However, their gardens should not be filled with limestone pavement which has been stolen because society is too weak to introduce sufficient deterrents to prevent that. I beg to move.

Lord Monro of Langholm

My Lords, I support the amendment. The noble Lord will remember the long debates on Section 34 of the Wildlife and Countryside Act which for the first time introduced restrictions on the removal of limestone pavement. As the noble Lord rightly said, while one may be able to undertake fishing, shooting or poaching without a vehicle, one certainly must have a vehicle to cart away lumps of limestone pavement. To have one's car, four-wheel drive or lorry confiscated as part of the penalty for committing that theft seems to me an eminently sensible provision.

Lord Marlesford

My Lords, I too support the amendment. It obviously makes sense and would constitute a deterrent if it were accepted. Frankly, the argument which was used in relation to the noble Lord's previous amendment—namely, that the confiscation of a vehicle was associated with something that was not a criminal offence—does not apply in this case. It clearly would be a criminal offence. It would be a major deterrent on an issue which will become increasingly serious. I hope that the Government will feel that it is a penalty suitable for the crime.

11 p.m.

Baroness Byford

My Lords, we on these Benches follow the line of thought which the noble Lord, Lord Hardy, put forward so robustly. It is a great crime that so much of this valuable limestone is being taken. It is pure theft. I may be wrong but I suspect that the Government will say that the amendment is not right or acceptable. I hope that the Minister will give the amendment due thought. It would send a strong message. People are often quite happy to pay a fine. However, the amendment provides for the confiscation of any vehicle. Making the commission of such an offence more difficult has much to recommend it.

I support the amendment. I hope that the Minister will consider it sympathetically.

Baroness Farrington of Ribbleton

My Lords, the amendment seeks to permit the confiscation of any vehicle which is used to assist in the commission of the offence in Section 34 of the 1981 Act in relation to limestone pavements.

I am pleased to reassure my noble friend Lord Hardy of Wath and the noble Baroness, Lady Byford, that the courts already have the power under Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 to order forfeiture of property used for the purpose of committing or facilitating the commission of any offence.

Lord Hardy of Wath

My Lords, if my noble friend will allow me to intervene, I made a relevant point in the previous debate. I pointed out that I have been involved in a number of conservation Bills in which that provision has been inserted. As far as I know, it has never been applied in England. It has in Scotland, but that is irrelevant to us today.

It is essential to emphasise the point. The courts in Britain have not been using the power my noble friend describes.

Baroness Farrington of Ribbleton

My Lords, I repeat that I refer to the Powers of Criminal Courts (Sentencing) Act 2000. Therefore, I do not think that it is reasonable to make the judgment that over a long period of time the power has not been used.

Lord Hardy of Wath

My Lords, with respect, the Bills to which I referred were enacted 10, 20 and up to 24 years ago.

Baroness Farrington of Ribbleton

My Lords, I understand the point my noble friend makes. The point make to him is that there is evidence here of recent action which has been taken with regard to the penalty that he seeks. I believe that the provision addresses the objective. That, coupled with the substantial increase in the existing maximum penalty for an offence under Section 34 from £5,000 to £20,000, to which my noble friend referred, should prove a deterrent.

My noble friend makes the point that in the past legislation has been introduced with maximum penalties available and that in the past the courts, he alleges—perhaps with some justification—have not taken seriously some of the offences. He referred to offences against birds. Speaking personally and perhaps anecdotally, the courts appear to take more seriously now interference with birds and flora and fauna. I think that my noble friend's work in this field may have helped to ensure that those who make the decisions in the courts are aware of the severity of the problem.

My noble friend referred to Amendment No. 191, which relates to the new Section 34 of the Road Traffic Act 1988 found in Schedule 7 to the Bill. The key distinction is that Section 34 of the 1988 Act is a road traffic offence. We explained on Amendment No. 191 that the power of forfeiture is available only for certain road traffic offences—broadly those that are punishable by imprisonment. I hope that my noble friend will feel that the Government have acted as he wished and that the power is available to the courts.

Lord Hardy of Wath

My Lords, I am grateful to my noble friend. I shall not press the amendment, but I shall watch with great interest over the next 10 years to see whether there is still a significant quantity of limestone pavement left in Britain. I certainly do not wish to stay late in the Lords on a Thursday night to pursue the matter without an assurance that the Government will respond positively. I beg leave to withdraw the amendment.

Baroness Farrington of Ribbleton

My Lords, before the amendment is withdrawn, I point out to my noble friend that the noble Lord, Lord Greaves, will be watching with him in North Yorkshire. He may also find my noble friend Lord Whitty there on many occasions—although I hasten to add that they will not be travelling together.

Amendment, by leave, withdrawn.

Clause 74 [Powers of entry]:

Lord Whitty moved Amendment No. 219: Page 49, line 13, after ("28P") insert ("or under byelaws made by virtue of section 28R").

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 220: Page 49, line 27, at end insert— ("() to determine any question in relation to compensation under section 20(3) of the 1949 Act as applied by section 28R of this Act;").

On Question, amendment agreed to.

Clause 75 [Enforcement of wildlife legislation]:

Lord Whitty moved Amendment No. 221: Page 50, line 31, leave out from ('amendments") to ("has") in line 32 and insert ("relating to offences and enforcement powers under Part I of the 1981 Act)").

The noble Lord said: My Lords, the amendment is consequential on Amendment No. 229, which is the substantive amendment in the group. It gives police officers new powers of arrest for certain wildlife offences. Many of us are aware of the difficulties that the police have faced when dealing with people who commit wildlife offences. I have been given examples of evidence that could be crucial to the investigation being removed before the police have had a chance to see it. That has probably led to some people being prosecuted for fewer offences and has almost certainly resulted in some people escaping prosecution. Wildlife crime can have a direct impact on populations of some of our more vulnerable species. I am concerned that the police should have adequate powers to enforce the controls on those species as effectively as possible.

The Bill already contains a package of measures to strengthen wildlife law enforcement. Amendment No. 229 makes certain wildlife offences relating to species of conservation concern arrestable, as an exception to the provisions of Section 24(1) of the Police and Criminal Evidence Act 1984. In those circumstances only, police officers will be able to arrest anyone whom they have reasonable grounds to suspect has committed, is committing or is about to commit such offences. The amendment has the strong support of Association of Chief Police Officers, which believes that the present law is inadequate in that respect.

Amendment No. 225, tabled by the noble Baroness, Lady Miller, would introduce new powers of arrest when evidence is spirited away. We believe that our more general amendment covers that. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, the amendment that we moved in Committee and have tabled again on Report is slightly narrower than the government amendments. It would give police officers the power of arrest to prevent the destruction of evidence that might be found at another place before the authorities could get a search warrant. Government Amendment No. 229 adequately covers what we were seeking to achieve in Committee. We welcome the fact that the Government have tabled their own amendment that covers our concerns and some other eventualities.

Baroness Byford

My Lords, I support the government amendments and thank the noble Baroness, Lady Miller, for her amendment. I agree that many people in this country are extremely worried about wildlife crime. I believe that, in the past, adequate powers either have not been in place or they have been in place but have not been used. As the noble Lord, Lord Whitty, explained, it is helpful if the police have reasonable grounds for suspecting that wildlife crime has been committed. I believe that it is an issue with which we all sympathise. We welcome the amendment.

On Question, amendment agreed to.

[Amendments Nos. 222 to 224 not moved.]

Schedule 12 [Wildlife: amendments to Part I of Wildlife and Countryside Act 1981]:

[Amendment No. 225 not moved.]

Lord Buxton of Alsa moved Amendment No. 226: Page 136, line 44, leave out ("subsection") and insert ("subsections (2) and").

The noble Lord said: My Lords, in moving this amendment, I wish to speak also to Amendments Nos. 227 and 228. I express my regret at not having moved this amendment in Committee. On the only occasion when that arose, I had to leave the House before midnight. I also declare an interest. I have had 50 years' association with English Nature, formerly the Nature Conservancy Council for England. I have been a member on various occasions and was asked to be chairman approximately 20 years ago. I also have a successful and informal arrangement with that body on my own area of wetland on the north Norfolk coast. I mention all that because I believe that this is the first time in 50 years that I have disagreed with English Nature. I am glad to see that the noble Baroness, Lady Young, is here and that we shall hear her views.

First, I want to make it clear that I am not suggesting any change to the present protection of birds legislation. I am concerned solely with the threat of prison for certain offenders. Therefore, it is a humanitarian and not a wildlife amendment. I believe that it involves a great point of justice.

I believe that we are agreed on all sides in supporting prison as a punishment for genuine wildlife crime. The purpose of my amendment is to exclude from the threat of prison ordinary, honest country workers—shepherds, working farmers, keepers, gardeners and wardens—all of whom make no gain from an offence. Amendments Nos. 226 and 227 identify the items in previous Acts where wildlife crimes may occur. Amendment No. 228 goes on to exempt from prison people who live and work lawfully in the countryside and who have no serious criminal or commercial intent and make no gain.

Those citizens will still be subject to the same laws as at present and can be fined severely if appropriate. The present legislation in this respect has been entirely successful and, in my view, there is no reason to change it. There is no suggestion whatever in the amendments that prison should not be available in the case of premeditated criminal activity of the kind that has been mentioned by noble Lords this evening; that is, where birds or eggs are stolen and sold, shipped abroad or locked away. There is certainly some nasty bird and animal traffic by which individuals seek to profit. We all agree on that. The noble Baroness, chairman of English Nature, and the chairman of the RSPB told me recently that that is their main concern.

A great deal has been said about SSSIs. In considering this amendment, it is important to keep in mind that they cover only 6 per cent of the country. My amendment is concerned mainly with the other 94 per cent; that is, the great mass of the country in which wildlife, especially birds, is entirely dependent on house owners, landowners, farmers, shepherds, private gardeners, wardens and keepers. It is they who protect wildlife in the country as a whole.

The main reason for ruling out prison for country workers and all the people I mentioned is that it has been proved to be unjustified and completely unnecessary. I shall come to that point. If an offence is committed occasionally, more than adequate penalties are already available. Heavy fines are an extremely painful sentence for any worker on the land. I am not suggesting that there should be a change to that. Those people are not criminals, even if one or two out of thousands once in a while may have been foolish or intemperate. They normally have slender resources and fines really hurt.

As we all know, the focus and preoccupation of these provisions is on the protection of birds of prey. I gave details on various aspects of the subject at Second Reading. It is emphatically raptors which prompted this unfortunate proposal. I shall try to remember to say "raptors" because one switches from one to another for birds of prey. "Raptors" shall be my word.

To introduce prison at this stage will make the Government look completely out of date. Since the introduction of earlier legislation, including the 1981 Act in which some of us took part—I moved amendments in this House—the overall population of the raptor group has increased by about 200 per cent. It is predicted to increase to 400 per cent in the not-too-distant future. Thereafter increases could be exponential depending on the food supply.

We are therefore already at the summit of a spectacular success story, looking to even more remarkable increases. That level of increase in the number of raptors occurred just as much in the 94 per cent of the country looked after privately as in the 6 per cent looked after or fostered by wildlife organisations.

The crux of the matter is this. That success was achieved without the threat of custodial sentences. Prison, or even the hint of it as a deterrent, did not exist and it therefore made absolutely no contribution at all for more than 20 years to one of the greatest bird recoveries in history. That proves that the threat of prison is completely unnecessary. The raptor recovery occurred without it ever being contemplated.

It may have been thought that birds of prey were endangered or even diminishing in number, but it is now abundantly clear that the reverse is the case. Raptors are doing very well indeed and no species are diminishing through persecution. So it looks as though the Government have been misled by a misinterpretation of the facts.

In view of those bird population statistics, which are beyond challenge, how can it conceivably make sense or be just to threaten citizens in the countryside with prison when the objective has already been achieved beyond everybody's expectations? I fear that it will be seen as vindictive activism by government and perhaps by the conservation authorities, or as an abuse of power. That will do nothing for birds and great harm to the Government's fragile image in the country.

I feel strongly about this because we succeeded with earlier legislation and to start talking about prison implies that we failed, which is manifestly absurd. Neither am I suggesting at this stage that anything should be changed in the protection of birds legislation as it stands, only that the threat of prison should not be piled on top—clearly now without any justification at all. That would be an insult to those people who have been the main contributors to the raptors' success. That increase has not been due primarily to people at base or to wildlife managements and government advisers, but to Parliament for making the law in which some of us here were personally involved and, more importantly, to the suspension of organophosphates and other chemicals. But it is due also to houseowners, landowners, keepers, gardeners and so on, across 94 per cent of the country for observing the law and allowing raptors to increase.

Let me come to the detail. In its press campaign for this Bill there was our usual RSPB press release last month concerning 153 incidents of destruction of birds of prey. Those reports are helpful and that is of course 153 cases too many. But that must be seen in its proper context. If there were 153, it would not be one person killing 153 raptors or 153 people killing one bird each. For the sake of argument, let us say that there are 20 miscreants killing perhaps eight raptors each. They could be farmers, shepherds, keepers or whoever. There are roughly 5,000 keepers, including some wives as assistants, farm workers part-timers and helpers. That means that out of 5,000 there are possibly 4,980 keepers and assistants observing the law and doing a lawful job for conservation. That is more than 99 per cent of the total force.

Now let us turn to the damage. We must check the bird numbers and be quite clear about how significant was the damage as a result of 153 casualties. My information comes from the most up-to-date and authoritative publications, including the book by Chris Mead of the British Trust for Ornithology and the report of the Government's own raptor working group. According to those publications, there are now well in excess of 100,000 raptors in this country of about a dozen species. As I explained, most species increased substantially, some even by 300 per cent and one or two by even more.

I apologise for the details but if your Lordships are not yet nodding off, perhaps I may give the figures for birds of prey in percentages: the kite, plus 150 per cent; the marsh harrier, plus 340 per cent; the hen harrier, which is always in the argument, plus 35 per cent; the goshawk, 574 per cent, which is a serious problem because the goshawk eats other birds of prey; the sparrowhawk, plus 20 per cent, which sounds low but we are getting near saturation point in any event; the buzzard, plus 10 per cent; the eagle, plus 5 per cent; the osprey, plus 572 per cent; the peregrine, plus 104 per cent. Every single one of those figures has increased. Is it surprising that things are looking fairly rosy for raptors overall?

There are two species which have not increased. One is the kestrel, but there are 50,000 pairs. There is a small decrease which is entirely due to farming and the absence of shrews and voles and nothing whatever to do with persecution. There is the Montagu's harrier, of which noble Lords may or may not have heard, in relation to which there is no change. It is a rare bird. It was a rare bird when I was small and it will always be a rare bird, as far as I can make out. But there is no question of persecution.

I must tell your Lordships that 153 is less than one-sixth of 1 per cent of the present total population of raptors. The threat of prison enforcement, therefore, becomes more and more incomprehensible and impossible to justify. If the threat of prison was ever justified, if it had ever been considered a good idea as a deterrent, we should have introduced it in 1981 or even earlier but it was not because nobody in those days thought about enforcement, only about leadership and persuasion. There were the great giants—Julian Huxley, Peter Scott, Max Nicholson and others. They started a huge movement which has been enormously successful but they never thought about enforcement. And they turned out to be right. A deterrent was clearly not needed; the raptors have now multiplied beyond expectations; so prison cannot possibly be justified. The threat of prison is an insult.

My great concern is that the Government will appear, by this ill-judged measure, not to understand balance. Maintaining the balance of nature in modern circumstances, already overwhelmed by the human race, is the last hope for natural biodiversity. The balance of nature is the actual meaning and purpose of conservation. That is what all those organisations are supposed to exist for. Birds of prey have no natural enemies except, in certain cases, from other birds of prey, and are therefore bound to multiply and upset the balance. Popular songbirds have been and are being decimated, probably by numerous causes but nobody is yet sure of the answers. It could be climate, winter starvation, winter wheat, the CAP, fast traffic, domestic cats or even Chernobyl, so they say, and so on. Perhaps it is a combination of them all. But what is now certain is that while popular birds decrease the raptors will still be on the increase. When there are very few popular songbirds left, the residue will easily be mopped up by birds of prey and may then never recover.

I am embarrassed that that has not been properly addressed. What is required is a conference of everyone concerned, like the 1970 conference of which Max Nicholson was director and which was presided over by the Duke of Edinburgh. That was enormously successful and produced a sea change in knowledge generally. That would be much better than looking stupid and ignorant in due course because of being completely out of date.

The serious aspect of all this for the conservation movement is that custodial sentences are being incorporated in a Bill through misleading information or perhaps even the suppression of information. Therefore, it is based on false conclusions. Inevitably, that means that if the Government persist, nobody will ever believe the department's wildlife advisers again. They will lose all credibility. Everything that they say will be suspect and there will be a shattering reverse of everything that so many of us have striven to achieve and worked for over half a century. In discussions and in various exchanges, the Minister has been helpful to me. I do not doubt that the amendment could be improved, but I sincerely urge him and the Government, in view of the false impressions now proved, to reconsider this serious injustice. I beg to move.

Lord Hardy of Wath

My Lords, I have three comments about the amendment and the speech of the noble Lord. I am not as optimistic about the continued rise in the raptor population because, as he pointed out, if the prey population falls—in many respects I believe that it is still falling—more will die of starvation.

However, I have some sympathy with him in regard to the matter of imprisonment. Most shoots are balanced and most keepers do not destroy protected species. If a keeper is under enormous pressure to wipe out everything that competes for the game birds, in order to secure his job he may well feel that he has to break the law. In that respect I believe it would be appropriate for the owner of a shoot to go to prison rather than his employee.

At the same time I have some sympathy. A good friend of mine and a man for whom I have a high regard is a distinguished pigeon fancier. Earlier this year I walked by his lofts with him and saw three piles of feathers close by. There was a sparrow hawk in a tree which stayed for some time and every time he let his birds out the sparrow hawk pounced. He said to me, "It is taking all my best birds and I would love to shoot it but it is protected". In any case, he is keen on conservation and he knew that the sparrow hawk was probably starving because there are few small birds left in his territory.

He did not shoot it. Fortunately a pair of magpies arrived and decided to occupy the tree and made the sparrow hawk's life miserable and it went away. Whether it will return this winter, if it has survived until now, I do not know. He is hoping that it does not, otherwise he will have no pigeons left.

I do not suggest that we should shoot all the sparrow hawks, but I would like to believe that someone will carry out some research, as the RSPB did with herons when people wanted to shoot them for emptying garden ponds. The herons had worked out various rope systems protecting ponds. It would be nice if someone could identify a humane trap in which to catch the surplus sparrow hawks before the pigeon fanciers of Britain become absolutely furious and decide that they will risk imprisonment for shooting the birds that are destroying their roosts.

Lord Monson

My Lords, the noble Lord, Lord Buxton, has put the argument so well and comprehensively and with such deep knowledge of the subject that there is little I can add. At this point I declare a potential interest in Parts II and III of the Bill, although I had absolutely no interest in Part I to which I occasionally spoke.

During the 1980s and to some extent during the early 1990s, the last Conservative administration were notorious for creating new offences for which individuals could be fined or sent to prison and for increasing the maximum penalties for existing offences. The way things are going, this new Labour Administration is rapidly following suit.

What is the justification for sending decent country people to prison for two years or even for two months for an honest mistake perhaps made in driving sleet or at dusk, especially when our prisons are full to bursting? Even if they are not full to bursting, the argument would still stand. I believe I know what the Minister will say. He will say that two years is a maximum penalty that courts will impose only in exceptional circumstances. Yes, but the reality is that if the possibility of imprisonment exists in statute, sooner or later it will be imposed. I hope that the Government will consider seriously this compromise amendment. It is a compromise amendment because it does not apply to premeditated offences and, if the amendment cannot be accepted tonight, perhaps some compromise can be agreed before Third Reading.

11.30 p.m.

Lord Monro of Langholm

My Lords, it is a privilege to follow my noble friend Lord Buxton of Alsa. He probably knows more about wildlife and the countryside than anyone in the House or in the United Kingdom. What he said is true and his recent article in Country Illustrated, which covered some of what he said tonight, shows that he is on the right track. We must listen to science if the necessary changes are to be made, particularly in relation to raptors.

My title is "of Langholm"—unfortunately I have no financial interest in the Langholm moor—so naturally I know a great deal about it. It is in Scotland and in sight of England. One is bitter about the fact that a scientific report on the area has been ignored by SNH and the RSPB. What many years ago was the finest moor in Scotland now has no grouse of any significance. Little is being done, six keepers have been discharged and the economy of the area has seriously suffered. That I put firmly at the door of SNH and the RSPB. It is a disgrace that a scientific report has been ignored.

I was a constituency MP in Dumfries for many years and know of the pigeon racing from the south of England, up the Pennines to the Solway area. Owners were furious about the number of pigeons which were killed by raptors while flying up the Pennines. It is serious that so little has been done to find a fair balance. No one wants a complete attack on raptors but a fair balance must be struck in order that other wildlife, whether song birds, game birds or racing pigeons, have a fair opportunity.

My noble friend Lord Buxton was right to say that we should impose a severe penalty on anyone breaking the law in this regard and that we should seriously re-examine the issue. The fines exist but we appear not to be taking action as regards breaking the law on access. There appears to be no deterrent as regards such action, but here there is a massive deterrent of imprisonment, which I believe is going too far.

Lord Renton of Mount Harry

My Lords, I support what has been said by my noble friend Lord Buxton and the noble Lord, Lord Monson. The difference between the noble Lord, Lord Hardy, and myself is that the sparrowhawk ate all the pigeons. As a result of their constant presence, my wife, who was trying to breed pigeons, gave up and took the remaining ones to London. She gave them to a friend in the hope that they might better survive in London than in Sussex because of the sparrowhawks.

It seems that for some time the campaign to protect raptors has reached an absurd proportion. The figures which my noble friend quoted show that in recent years the number of raptors has increased hugely at the expense of song birds. Like my noble friend Lord Monro, I, too, have shot on moors, notably in the Borders, where, thanks to the increasing number of raptors, the grouse have disappeared. There it is easy for a raptor to take the young grouse out of their nests, and that marks the end of the season for the keeper, the beaters and everyone employed on the moor.

Therefore I hope that what my noble friend said tonight will highlight the problem about raptors riot only as regards imprisonment for those who shoot a sparrowhawk or a kestrel but in the wider sense—that the protection of one species of bird has gone too far at the expense of many others.

Baroness Young of Old Scone

My Lords, I regret that I must rise to speak against these amendments. I have a considerable degree of respect for the noble Lord, Lord Buxton, and everything that he has achieved in conservation on his wetland sites in Norfolk. I am saddened by some of the observations tonight. It is absolutely vital that this Bill contains a provision for custodial sentences. I describe a circumstance where only a custodial sentence will do. There is a roaring trade in exporting peregrine eggs and chicks from this country to the Middle East which can be sold for many thousands of pounds. The people who carry out those activities, which are crimes, regard a fine as simply a tax on their profits. Therefore, they are quite willing to pay those fines serially.

Lord Buxton of Alsa

My Lords, I apologise sincerely to the noble Baroness for intervening. I remind her that I have said twice that all of that is agreed. There is no question that it is a crime to make money from the sale of these birds. I refer only to people in the country who do a different job but who, unfortunately, may get into serious trouble. Heavy fines are available. However, they do not have to leave their wives and children in tiny cottages which are at the mercy of every kind of brigand.

Baroness Young of Old Scone

My Lords, if the noble Lord allows me to continue he will hear that my thesis takes that into account. This amendment creates a loophole which allows some people—it is difficult to determine who they are—to avoid custodial sentences when they have deliberately committed crimes. I am sure that the noble Lord does not intend to signal what these amendments appear to say.

The amendments provide that an offence is not imprisonable if it is carried out in the course of lawful activity and is relevant to the pursuit of that activity. For example, if a game keeper or farmer shoots a bird of prey he will not be imprisoned, but if a bird dealer or taxidermist destroys such a bird he will be. That is a strange distinction. The shooting, poisoning and trapping of birds of prey does not happen by mistake in the course of normal game keeping or other countryside activities. It is almost uniquely a premeditated criminal activity, and a person who engages in it should not be treated differently from a person who steals eggs and birds to sell. The fact that this is not a universal practice but is carried out only by some people makes it even more important that keepers, farmers and other country people who behave within the law and do not destroy birds of prey are not penalised by the prospect that others who flout the law are simply subject to a fine rather than serious sentences of the kind that would be imposed on others such as taxidermists and bird dealers.

The noble Lord said that some populations of birds of prey had increased, which is true. However, some of our most magnificent birds of prey continue to be persecuted quite unnecessarily. Golden eagles are being shot. Those magnificent birds, which are comparatively few in number, should not be persecuted. In England we have only 20 pairs of hen harriers, which is hardly a rash of birds of prey on the landscape. The red kite reintroduction programme in this country costs approximately £15,000 per bird, but already over 60 of those birds have been illegally destroyed by shooting, trapping and poisoning, which is a disgrace. I believe that in today's society we should not regard the persecution and killing of these magnificent birds as anything other than a serious offence. To kill birds of prey is unnecessary and against the law, and I hope that the Minister will reject these amendments.

Lord Monson

My Lords, before the noble Baroness sits down, does she accept that in bad weather conditions—fog, mist and heavy sleet—people can make an honest mistake, perhaps not with golden eagles but smaller birds of prey?

Baroness Young of Old Scone

My Lords, with respect, the noble Lord must have met some very poor gamekeepers or farmers. My experience is that most people know very well what they are shooting. Indeed, in normal game shooting, people take great pride in knowing what they are shooting.

Lord Marlesford

My Lords, I support the amendment of my noble friend Lord Buxton. I would not presume to trade between the technical expertise of my noble friend and the noble Baroness. I found my noble friend's points convincing on the technical front.

The conservation movement is a very broad church. Having been active in the conservation movement—certainly for the past 20 years—I can claim to be a part of it. It includes—I have seen it repeatedly and in many areas—some people with very extreme ideas and some people who are quite fanatical in their ideas: one has only to mention the animal rights groups. The statements of the noble Baroness, Lady Young, do not accord with what the ordinary people of this country believe to be the seriousness of the matters to which she referred. The noble Baroness's language is disproportionate to what the people feel. There is almost an echo of the 18th century in this debate. It is rather like having a debate on sheep stealing—hanging people for sheep stealing. It is staggering.

I used to say when I was on the Countryside Commission that it is a government's job to differentiate between sensible and foolish views. One cannot take every view that is put forward by the conservation groups within the conservation movement. It is for the Government to come to a sensible view. The amendments suggested by my noble friend are sensible and are in close accord with what the people of this country feel. When my noble friend referred to the "fragility of the Government's support in country areas", I thought that I noticed the noble Lord, Lord McIntosh, scoffing slightly—I may be wrong—at the idea that their support was fragile. In my opinion it is very fragile. Funnily enough, paradoxically perhaps, I spend much time defending the overall record of the Government to people in the country who can no longer find words condemnatory enough to say about them. If those people could find an attractive political party, many would desert new Labour in droves. Therefore, we need better balance in this matter.

Furthermore, I was rather concerned to hear the noble Baroness, Lady Young, who in many respects I greatly respect, using language more appropriate to some of the really evil crimes in our society.

11.45 p.m.

Earl Peel

My Lords, my noble friend has raised one of the most important issues facing the countryside at the moment in terms of management. I have a great deal of sympathy for what my noble friend said and I certainly have a great deal of respect for what he says. Like other noble Lords, I know much about his provenance. He is not just someone who talks about conservation. He is an active conservationist. What he has achieved on his home patch is quite remarkable.

This is a thorny question. I accept much of what the noble Baroness, Lady Young, said. But there is something wrong with her argument. It is all very well bringing in custodial sentences and severe fines—what one might term "the stick"—but if one has no carrot to balance that stick, then it is wrong and unjust. At the moment, we have no carrot.

My noble friend Lord Monro talked about the disasters of Langholm. I have to declare an interest at this point because at that time I was chairman of the Game Conservancy Trust, which was the body that carried out the research at Langholm. It demonstrated beyond any question of doubt that hen harriers can reduce grouse populations to a point where a moor can become unviable and consequently, as my noble friend rightly said, jobs are lost and a whole management structure is removed.

There is no disagreement between any of the bodies about the science. It is purely in regard to how we go forward that there is a difference between the various organisations. To date, no consensus has been reached on how we go forward successfully and how we can produce a carrot to counteract the stick.

I do not want to say much more about this subject because it is a detailed and complex one. But I shall quote from a recent paper, Raptors and Red Grouse: Conservation Conflicts and Management Solutions, produced by four very eminent scientists—Simon Thirgood of the Game Conservancy Trust, Professor Peter Hudson of Stirling University, Steve Redpath of the Institute of Terrestrial Ecology and, for those who are aware of his importance in these matters, Ian New ton of the Institute of Terrestrial Ecology. Ian Newton is, without doubt, the leading expert in this country on raptors. I shall go straight to the conclusions of their paper: Resolving the conflict between raptors and grouse remains a major challenge. Accepting the status quo of illegal persecution of raptors, declining grouse bags, and continuing loss of heather is not a sensible option". I cannot believe that anyone could disagree with that. The paper goes on to say that, immediate measures are required to reduce conflicts between raptors and grouse". Great efforts have recently been made to try to resolve the situation. I have to say that those have very largely failed. I do not believe that either the RSPB or the conservation bodies have shown a will to overcome this problem. I urge them to do so. I urge them to strive much harder to reach a solution to deal with the immediate problem; otherwise we shall see more Langholms, more management systems destroyed, more jobs destroyed and, ultimately, more wildlife destroyed.

I make this request to the Minister. I hope very much that we can set up in England and Wales a moorland working group similar to that which operates in Scotland, which is chaired by SNH in that country, so that we can have proper dialogue between the conservation bodies—the NGOs, the statutory bodies and those with an interest in these matters. Science and research will continue. Incidentally, in response to what was said by the noble Lord, Lord Hardy of Wath, work on sparrowhawks has started, but that is another matter. New issues will appear and develop as we go along. We need this forum for proper dialogue.

I have raised the matter with the Minister's right honourable friend Mr Meacher and I should be very grateful if, before too long, I could receive an answer in letter form to that specific question.

Baroness Miller of Chilthorne Domer

My Lords, I should like to speak briefly from these Benches. I agree with noble Lords who have pointed out that, on occasion, we fall behind the event when it comes to controlling species that have become far too numerous. In the case of these amendments, which deal with Schedule 1 birds, I should point out that earlier tonight we passed an amendment on biodiversity. Having done that, it will be for a number of different authorities to deal with species that are getting out of control.

Personally, I would start this process not with Schedule 1 birds, but rather to put on a ban on magpies. Furthermore, in the case of songbirds, I would look at the effect of domestic cats on their populations. However, while I understand some of the frustrations as regards those raptors that seem to be increasing in numbers—in my area it might be the buzzard—while they remain Schedule 1 birds and thus are protected, then we should regard them as such. The right course would be to examine whether, if they have multiplied in such numbers as to present a threat to other species, they should continue to be included, in the schedule.

Lord Glentoran

My Lords, I rise from the Front Bench to speak in this debate not in any way as an expert, but to demonstrate my support—in case the Government Front Bench thought that it might be lacking—for my noble friends from this side and, indeed, for most of those who have spoken on all sides of the House. I think that everyone would agree that this has been an extremely enlightening debate about the problems of raptors. However, it has strayed somewhat from the basic proposition in the amendment tabled by my noble friend Lord Buxton, which concerned the question of imprisonment.

Throughout the progress of this Bill, the Minister and the Government have consistently maintained that they are in the game of balance here. They have resisted sanctions of virtually every kind over large parts of the Bill. We have accepted their arguments and their rights. I strongly believe that severe sanctions are necessary against the killing or stealing of Schedule 1 birds. However, I was perhaps a little disappointed by the passion demonstrated by noble Baroness, Lady Young, though I understand exactly her arguments.

I believe that there is room for some amendment in this part of the Bill to improve its balance. I suggest that a strong case can be made to differentiate between those to whom the noble Baroness, Lady Young, was referring; namely, those who knowingly trade in and profit from the killing of birds and the stealing and sale of the eggs or chicks of such birds. But I can tell the House that there are occasions when both gamekeepers and sportsmen have the misfortune to shoot a raptor or a protected species. It can happen in bad weather, when one is operating with a limited line of sight, or it can happen at dusk. I accept, however, that it can also happen when such shooting is undertaken wrongly and with evil intent. However, the balance of the Bill as presently drafted is wrong.

I realise that the House cannot divide on this matter. However, I shall go home tonight feeling rather sour if the Minister cannot see his way to having another look at this. I said in Committee, and I have felt throughout today, that the Bill has been going along extremely well. It is developing into a first-class piece of legislation, which is supported on all sides of the House. This issue grates; it has the wrong tone and is a little out of balance. I ask the Minister to accept that and to have a re-think.

Lord Whitty

My Lords, I do not disagree that we have had an informative and enlightening debate on many aspects of these issues, but I find the conclusions of the debate bizarre. I also find the amendments brought forward by the noble Lord, Lord Buxton, very odd. To find the noble Lord, Lord Monson, for example, supporting them is very odd indeed.

No one disagrees that much of the protection of wildlife in the countryside rests in the hands of thousands of countryside workers, the vast majority of whom for the vast majority of time take very seriously their responsibilities in this respect. They would not knowingly endanger a rare species or the biodiversity objectives we are trying to achieve in the Bill.

But throughout our proceedings, many of your Lordships have said that we need stronger protection of wildlife, flora and fauna within the Bill. In this schedule we have provided a substantially greater sanction—not only for raptors but for all the birds and animals in Schedule 5 and for all the plants in Schedule 8. We are therefore talking about a very wide range of possible offences against often rare wildlife—plants, animals, birds, and so on. To make an issue of the position on raptors seems an incredibly narrow approach.

Almost everyone believes that the current sanctions relating to wildlife offences are not adequate. Whether we blame the courts for not imposing the maximum penalties, the police for not pursuing them, the inadequacy of the penalties themselves, or whatever, they are not working. It must be part of a wildlife Bill to make sure that the sanctions are greater and that there is a greater deterrence for people who breach the regulations and endanger significant parts of our biodiversity.

If that is agreed, it is surely illogical to say that it matters who perpetrates an offence. What seems to be behind the noble Lord's amendments is that if a rare egg is stolen, or rare plants are torn up and so on, and that is done by a worker on an estate, then the penalty that applies to somebody who comes in from outside and does exactly the same should not apply. I cannot think of any other area of crime where the occupation of the perpetrator differentiates how they will be punished.

That is not to say that there cannot be significant mitigation put before the courts. In a sense, I am doing what the noble Lord, Lord Monson, predicted. It is already a clear defence under the Wildlife and Countryside Act that if a person can show that an act he has carried out, which might otherwise be against the law, was the incidental result of lawful activity and could not have been avoided, that is a defence and an offence will not have been committed. Even if an offence has been committed, mitigation has to be taken into account by the courts.

But we cannot exempt people from the effects of increased penalties for wildlife offences—which are vital to the preservation and enhancement of our countryside and wildlife—by dint of their occupation. It is the role of the courts and the judiciary to decide whether or not people are guilty of offences, and then to judge, in the light of all the circumstances, what are the appropriate penalties. We have upped the penalties. There may be mitigating circumstances—there often will be in the kinds of cases to which noble Lords have referred. The courts must be able to judge whether to impose the full sentence or as to what lower sentence they will apply.

We believe that it is necessary in order to deter wildlife crime—much of which is in pursuit of profit—to impose maximum sentences. We recognise that the courts will often not impose those maximum sentences. To differentiate by motivation is a matter for the courts; but effectively to differentiate by occupation would be an incredible new precept in English law. I do not believe that we should go down that road.

Arguments about whether or not raptor populations have increased are for the conservation agencies to take into account, as the noble Baroness, Lady Miller, rightly said, and they may have to alter the schedules in terms of which species fall under which schedules. However, I cannot accept the basic premise of the amendments, even though I recognise the strength of feeling on the need to ensure that countryside workers, and estate workers in particular, do not feel threatened, and the feeling that certain matters are getting out of balance in relation to raptors, and so forth. Many of the individual points are no doubt valid. But the central point of the amendments is utterly wrong; it would be a wrong principle for us to enshrine in English law.

Midnight

Lord Buxton of Alsa

My Lords, I should like to thank noble Lords on all sides of the House who have spoken in this debate. Their views were expressed with such eloquence and wisdom that I do not want to demean them by repeating anything that has been said. I look forward to reading the debate in Hansard.

However, I am deeply disappointed with the response from both the noble Baroness, Lady Young, who is an old friend, and from the Minister, who has hitherto been much more helpful in discussion. I do not want to be on record as having had a punch-up with anyone concerned with conservation. Therefore, I shall merely say that they have completely missed the point. The main point I was making was that everything has gone right without custodial sentences. Why in the name of God do they suddenly want to ratchet up the position and introduce such a provision when it has been proved to be completely unnecessary?

I should like to leave the matter there. I feel that I cannot say anything now which is not fierce and which might be wounding. It is better to leave it as it is. I should like, therefore, to withdraw the amendment—but in the certain hope that the Minister, the Government and English Nature will consider everything that has been said on all sides of the House and that they will try to find their way to fairness. Much of what I heard from both those quarters scares the daylights out of me. God knows what would happen and where I would go if my friend became Prime Minister and that sort of attitude was adopted towards perfectly good, legitimate people. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 227 and 228 not moved.]

Lord Whitty moved Amendment No. 229: Page 137, line 29, at end insert—

("Police and Criminal Evidence Act 1984 (c. 60)

13. In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after paragraph (r) there is inserted—

1. "(s) an offence under section 1(1) or (2) or 6 of the Wildlife and Countryside Act 1981 (taking, possessing, selling etc. of wild birds) in respect of a bird included in Schedule 1 to that Act or any part of, or anything derived from, such a bird;
2. (t) an offence under any of the following provisions of the Wildlife and Countryside Act 1981—
1. (i) section 1(5) (disturbance of wild birds),
2. (ii) section 9 or 13(1)(a) or (2) (taking, possessing, selling etc. of wild animals or plants),
3. (iii) section 14 (introduction of new species etc.)."").

On Question, amendment agreed to.

Clause 77 [Procedure for designation orders]:

Lord Dixon-Smith moved Amendment No. 230: Page 52, line 2, at end insert (", local owner/occupier representative bodies").

The noble Lord said: My Lords, we come to the part of the Bill that deals with areas of outstanding natural beauty. This small group of amendments deals with the confirmation of orders by the Secretary of State.

Areas of outstanding natural beauty can be created by orders brought forward by the Countryside Agency or, as appropriate, the Countryside Council for Wales. They have to be approved either by the Secretary of State or, indeed, by the National Assembly for Wales. It is a moot point whether one should have this breadth of consultation at this point or whether it should be undertaken at the earlier stage by the Countryside Agency or the Countryside Council for Wales. In that regard, these amendments are somewhat imperfect and perhaps need a little more thought.

However, I ask the Minister to consider what we are raising by way of these amendments. Areas of outstanding natural beauty occur for two reasons: first, because they are fortunate in their topography; and, secondly, because they are fortunate in the people who have custody of the land within their boundaries. I refer to farmers and landowners, by and large, but also to people who live in favourable communities and take great care of them. I know of no other reasons for the existence of AONBs.

With this little group of amendments we seek to bring within the consultation process a wider group of people to represent the communities—especially those who have an interest in the creation and maintenance of those communities—than is presently provided for in the Bill. The Bill currently provides for consultation with local councils. Our amendments would bring in the representatives of landowners and occupiers. That may, perhaps, be better covered by using words like, "other relevant organisations". Indeed, local conservation bodies will have an interest in such matters and could well be consulted at this early stage.

We are dealing with a consultative process in the creation of areas of outstanding natural beauty. I find it inconceivable that the process will not take place in this way. I suspect that the Minister will tell me that we are in the business of dotting "i"s and crossing "t"s once again. However, as currently worded, I do not believe that the Bill is sufficiently broad. It could be improved. I hope that the Minister will consider that point.

Amendment No. 231 would apply the same consultation process to variations in the areas of outstanding natural beauty. These are quite small, sensible and unobjectionable amendments. I hope that the Minister will consider them positively, even if he cannot agree to them tonight. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, we like the idea that parish councils should be consulted, as specified in Amendment No. 230B. However, I believe that the amendment should say "and parish councils", instead of specifying "or parish councils" as an alternative. Perhaps the noble Lord would consider including parish councils in Amendment No. 231; and, indeed, in some of the other amendments that we shall be addressing at a later stage. In some of the more sparsely populated areas, I am sure that parish councils will be particularly relevant.

Lord Whitty

My Lords, I acknowledge that these amendments are intended to require wider consultation when AONBs are being designated. As I tried to explain in Committee, the Government's proposals in this area follow the legislation relating to national parks in providing for formal consultation to take place only with the local authorities. The point here is that, in practice, the designating bodies carry out much wider consultation than is provided for in the statutory requirements. We would expect that to happen here.

In practice, if further AONBs are designated—which, of course, is far from certain—parish councils and anyone else with an interest will be able to contribute their views, which will be taken fully into account. There would almost certainly be a public inquiry to allow all views to be heard. However, I am against adding to the list of formal consultees because it would complicate the process and mean that certain others, who almost certainly would be consulted, might be omitted. We would then have the usual problems in that respect.

I recognise that the noble Lord modified his approach from the rather wider definition that was previously sought. But the current amendment proposing that, local owner/occupier representative bodies", should be consulted is flawed in that it does not cover seeking the views of individuals whose views might not be represented by these "representative bodies". This demonstrates again that it is better to have wide non-statutory consultation rather than attempt to lay down precisely who should be consulted. I hope that the noble Lord will agree with that approach.

Government Amendment No. 252 is included, not entirely logically, in the group we are discussing. This is merely a tidying amendment to the interpretation provisions in Clause 85. It provides that the definition of "natural beauty" provided in Clause 85 applies only in relation to Part IV of the Bill. This is because, where the expression "natural beauty" appears in other parts of the Bill, separate but consistent descriptions of the meaning are already provided there. I shall move that amendment when we reach it.

Lord Dixon-Smith

My Lords, I am grateful to the noble Baroness, Lady Miller of Chilthorne Domer, for her support in principle even if we are not absolutely certain whether we have the wording right. When one is in opposition one rarely has the wording right. However, when one is in government one has the staff to put the wording right. Usually between us we manage to get somewhere.

I heard what the Minister said in response to the amendment. I cannot say that I am particularly happy with it. However, I shall consider with care what he said. I doubt whether this is an issue of sufficient significance that we shall need to return to it on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 230A to 231 not moved.]

Clause 78 [Functions of certain bodies in relation to areas of outstanding natural beauty]:

Baroness Byford moved Amendment No. 232: Page 53, line 4, leave out ("planning").

The noble Baroness said: My Lords, in moving Amendment No. 232 I wish to speak also to Amendment No. 233. We consider that the word "planning" should be deleted from subsection (4) of Clause 78. The provision in that subsection should apply to the whole of a local authority. I had assumed that that would be the case.

In Committee I said that the notices we were then discussing should be held by a local planning authority and was told firmly that that was not the responsibility of a planning authority. I query the reference to a local planning authority at this point in the Bill.

Amendment No. 233 seeks to substitute the words "a duty" for the word "power" in subsection (4) of Clause 78. We believe that "a duty" would be more appropriate. I support government Amendment No. 234 in this group. I beg to move.

Lord McIntosh of Haringey

My Lords, without seeking to curtail any debate it might help the House if I now say a few words about Amendment No. 234.

When the House considered in Committee Amendment No. 453 tabled by the noble Lord, Lord Renton of Mount Harry, I indicated that we had sympathy with that amendment and would consider bringing forward an equivalent provision on Report. Amendment No. 234 is the resulting amendment. It will require public bodies when carrying out their functions so as to affect an AONB to have regard to the purpose of conserving and enhancing the natural beauty of the AONB. As discussed in Committee and reflected in Clause 76, that purpose is the reason for designating AONBs. It can only be right that in carrying out their functions in or so as to affect AONBs public bodies should have regard to the purpose for which AONBs have been designated.

This clause is modelled on an equivalent provision introduced by the Environment Act 1995 which already places a similar duty on public bodies in relation to national parks and their purposes. It is appropriate that while the Government want to emphasise the importance of our AONBs and the fact that their landscapes are of equivalent quality to the national parks, we should adopt this duty which reinforces exactly that point.

I point out for purposes of clarification that the requirement to have regard to the need to conserve and enhance natural beauty in AONBs will of course constitute only one of the various statutory responsibilities placed on relevant authorities and will not override all the various other duties which public bodies and statutory undertakers operate under.

I shall respond to the amendments to the amendment and to the amendments in the name of the noble Baroness, Lady Byford, at the end of the debate but I thought it helpful to state this first.

12.15 a.m.

Lord Renton of Mount Harry

My Lords, I thank the Minister for following up the promise he made to me in Committee. Amendment No. 234 provides that the public authorities concerned, shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty". Having moved to areas of outstanding natural beauty, perhaps it is appropriate for me again to declare an interest to the House as chairman of the Sussex Downs Conservation Board, which is entirely within an area of outstanding natural beauty, and as a member of the executive committee of the Association of AONBs.

I am pleased that the Minister has brought forward this clause. It reflects existing legislation regarding national parks. It will help to ensure that areas of natural beauty enjoy the weight and recognition appropriate to their national importance. I cite those words from the briefing from the Council for the Protection of Rural England on the amendment. I do not always agree with the CPRE but on this occasion I strongly agree with it. With this clause in the Bill it will be easier for AONB authorities to enter into a constructive dialogue with a wide range of national bodies and statutory undertakers. I anticipate that the noble Lord, Lord Bridges, for example, will say that the words "have regard" should be substituted by the word "duty". In a sense I, too, prefer that. But I accept that the traditional wording in relation to national parks has been used. I am sure that it will reinforce the status of AONBs in a way that is thoroughly desirable. I welcome the amendment.

Lord Bridges

My Lords, it may be for the convenience of the House if I address my amendment, Amendment No. 234ZA. The noble Lord, Lord Judd, has put his name to the amendment. He asks me to say that he strongly supports it and greatly regrets that he is unable to be here to speak in its favour.

I fully share what I believe to be the Government's intention to make this clause more effective and clear as regards protection of AONBs. I believe that it is not as effective as it should be and in its present form is seriously defective. As the Minister recalled, the Government announced at an earlier stage—I think during t he passage of the Bill through another place—their intention to move an amendment in this House to improve the environmental protection of AONBs so as to give them a status similar to that of national parks. In its present form the amendment will not achieve its purpose for the following reasons.

As the noble Lord, Lord McIntosh, reminded us, subsection (1) of the Government's new clause is based on the legislation already in place in the Environment Act 1995 regarding national parks, with the words "national parks" removed and the word "AONB" inserted. This will not produce the required result since the national parks are their own planning authority. I refer to the recent Windermere case. All the statute need do in that regard is to recall to the national park authority the priority given on the statute to their environmental protection.

But that is not the case with the AONBs. It is the local planning authority which decides planning issues in the AONBs and the words in the Government's new clause do not bind the local planning authority. The latter is simply told to "have regard" to the purpose of the AONBs. As I shall explain in a moment, it may not regard that as a matter of priority.

Next there is a conflict between the side note in the Government's text, General duty of public bodies, and the wording of the clause itself. I take it that it was the Government's intention to create a public duty but those key words are omitted from the clause. I am advised by the Officers of the House that a side note has no legal effect. It is merely a guide to the reader of the statute. The amendment would transfer the words from the side note into the text of the new clause, rendering it more effective and apposite.

I wrote to the noble Lord, Lord Whitty, on 2nd November to inform him of my intention to table the amendment. He kindly replied in a letter dated 14th November, which was forwarded to me by fax and received here this afternoon. He writes that he cannot accept my formulation because, the general duty to conserve and enhance", AONBs belongs to many government bodies and cannot be addressed to local planning authorities alone. I used the phrase "general duty" because it appears in the side note to the Minister's amendment. If he can suggest another form of words that improves on "have regard to" but goes less far than a "general duty", I shall gladly consider it. The words "have regard to" on their own are inadequate.

The Government's new clause appears, to me at least, to be in conflict with their policy planning guidance on AONBs, which rules out any major commercial development unless it meets two tests: national need and the absence of any alternative site. If the Government's new clause becomes law in its present form, it will be seen by some, myself included, as weakening the current position, as defined in the policy planning guidance. That would lead to confusion and would be very undesirable.

Some noble Lords, such as the noble Lord, Lord Renton of Mount Harry, who has just spoken and whose opinion I greatly respect, feel that the amendment goes too far. I accept that planning authorities come in various sizes, political hues and attitudes. Many of them may be zealous in defence of their AONBs, but not all of them are. I shall illustrate that with a current important example that has guided my approach to the issue.

At the boundary of the Suffolk coast and heaths AONB and inside its south-western frontier is an archaeological site of national importance at. Sutton Hoo. A substantial local farmer who works the fields nearby wants to build a new washing, cleaning and packaging plant for his vegetable crops, at whose cultivation he is highly proficient. He bought a small redundant military site nearby, previously used by the Royal Air Force for a ground approach radar, and made a planning application for a large new structure on it close to Sutton Hoo. The planning officers supported him. Indeed, they had suggested the site to him in the first place and commented favourably on it when it came before the planning committee. The elected councillors rejected the proposal, having been duly warned of its policy implications by the local inhabitants. Their decision is now being appealed by the applicant, whose formal grounds for appeal clearly show the support that he was given by officials in the local planning authority.

I do not expect the Minister to comment on the case and it would be improper of me to suggest that he might, but it is a serious current example of how the new clause might be interpreted by some local planning authorities, which might claim that, as well as having regard to the purposes of AONBs, they also had regard to their own priorities, including the misery of the local agricultural population and the need to provide further opportunities for an effective farmer. That is why the Government's test is dangerously weak and why I prefer my version. The Council for the Protection of Rural England, to which I have spoken recently and of whose Suffolk branch my wife and I are active members, believes my amendment to be an improvement.

It would have been better if the new clause had been before us in Committee, but it was not available then. I do not pretend that my version is the last word on the subject. No doubt expert draftsmen could produce a more refined text. If the Minister is prepared to consider my points, I shall be content to withdraw the amendment.

However, there is a significant issue here and I intend to pursue it further. I emphasise that in this context the phrase "have regard to" is too permissive. We want a form of words which calls on the local planning authority to give proper priority to the needs of the AONB, which this text does not do. This is a very important clause. I hope that the Government will be able to reflect again on what I have said.

Lord Marlesford

My Lords, I rise to support the noble Lord, Lord Bridges, in what he seeks to do. I certainly consider that the addition of the section on AONBs is every bit as important for the purpose of this legislation as the whole of the access section. I believe that it represents a major improvement to a Bill which, in general, I have always supported.

The AONBs owe much to my noble friend Lord Renton of Mount Harry, who gave this matter a dry run a year or so ago. I believe that government Amendment No. 234 is good so far as it goes, but it does not go far enough. I understand that the wording suggested by the noble Lord, Lord Bridges, is not quite acceptable to the Government. Amendment No. 234 states: In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall". I suggest that we simply add the words, "seek to conserve and enhance". That does not mean that an authority will necessarily succeed. It does not mean that that will be the most dominant of its policies; but that it should, when it can, seek to conserve and enhance the beauty of the AONBs. The Government should return at Third Reading with slightly better wording for that amendment which, in itself, is an important addition to the Bill.

Lord Glentoran

My Lords, I have been asked by my noble friend Lord Roberts of Conwy to speak briefly to Amendment No. 234ZB, if that is in order. Briefly, he says that Amendment No. 234 requires statutory undertakers, when exercising any functions in relation to land in an AONB, to have regard to conserving and enhancing its natural beauty.

Particular concern has been expressed by holders of electricity licences under the Electricity Act 1989 over the use of the word "enhance". It implies a positive obligation on licence holders to improve the appearance of an area. In many cases, that is likely to result in claims that the licence holders should remove electric lines or plants which are in AONBs or place such lines and equipment underground. My noble friend goes on at some length to detail his views. However, I believe that the Minister has an understanding of them.

Lord McIntosh of Haringey

My Lords, I am grateful to noble Lords for explaining the amendments to my Amendment No. 234. I start with Amendment No. 234ZA. Our amendment requires relevant authorities, in exercising or performing their functions, to have regard to the need to conserve and enhance the natural beauty of AONBs. The side note, as the noble Lord, Lord Bridges, recognises, is not part of the Bill. However, it is intended to mean "a duty to have regard to". That is exactly what it means. It does not place a particular management demand on those bodies. It is intended to ensure that, in taking decisions or carrying out work which affects AONBs, public bodies and statutory undertakers should have regard to the fact that Parliament has provided for those areas to be designated for the conservation and enhancement of their natural beauty.

It would be unacceptable to do what Amendment No. 234ZA seeks to do by turning the duty to have regard into a general duty on relevant authorities to conserve and enhance the natural beauty of AONBs. While all Ministers of the Crown, public bodies and statutory undertakers should "have regard to" the reasons for which AONBs have been designated, they cannot all be made responsible for their active management, which is what Amendment No. 234ZA appears to propose. Those bodies all have their own existing statutory responsibilities, and they have a wide variety of degrees of influence or control over AONBs. Of course, they should have regard to the need to conserve and enhance natural beauty, but it would not be justified to give them a general duty to do so. I hope that the noble Lord, Lord Bridges, will not pursue the matter.

Amendment No. 234ZB draws attention to the legitimate concerns of statutory undertakers. We believe that we have got it right in requiring the relevant authorities, which include statutory undertakers, to have regard to conserving and enhancing natural beauty. But our amendment does not go further and require them to take particular action to do so. I have heard the concerns which come from electricity companies and they are quite legitimate. The companies are subject to various duties, including the efficient co-ordination and economic supply of power.

Government Amendment No. 234 will have the same application to electricity companies acting as statutory undertakers as it will to all the other bodies to which it will apply. That is to say, in exercising or performing their functions the bodies must have regard to the question of conserving and enhancing natural beauty.

12.30 a.m.

Lord Marlesford

My Lords, is the Minister aware that for many years now Eastern Electricity has had a programme to put wires, not of the highest voltage, underground in designated areas including national parks, conservation areas and AONBs? The sad thing is that other electricity companies have been much less enlightened and have not yet followed suit. So rather than pandering to them, would not the Minister prefer to encourage those companies to follow the example of Eastern Electricity?

Lord McIntosh of Haringey

My Lords, I would encourage any statutory undertaker to follow that example. I was very much in favour of a proposal for the Millennium Commission to spend all its money in putting cables underground. That would have made an irreversible change in favour of the natural beauty of this country. However, I am told that that would cost £100 billion, despite the substantial sums available to the Millennium Commission. We would like to see more cables put underground but we do not believe that it is appropriate to do that by legislation in this way.

Despite what the noble Lord, Lord Marlesford, said, our amendment does not mean—I say this to console the noble Lord, Lord Roberts, in his absence—that electricity companies will be required to place their lines underground in AONBs.

I believe I heard a general welcome for Amendment No. 234, but I believe that we have got the balance right. As regards Amendments Nos. 232 and 233, I am a little surprised to see them because they would place a duty on local authorities to take such action as appears to be expedient for the accomplishment of the purpose of conserving and enhancing natural beauty. In Committee I explained that what is now Clause 78(4) is merely a re-enactment of the provision which we have had for more than 50 years in the National Parks and Access to the Countryside Act 1949. In Committee the Opposition Front Bench wanted to remove that power altogether. Now they want to turn it from a power to a duty. That is a 180 degree U-turn.

Baroness Byford

My Lords, I am grateful to the noble Lord for giving way. I believe that during the early stages we were concerned that there would not be enough funding for some of the things that the Government hoped to do. As the Committee stage continued it became clear that that would be so. Therefore, it is better that there is someone who looks and listens. We just wish to make sure that the boards have enough strength. That is why we tabled these two amendments. I believe that the noble Lord is pulling my leg slightly.

Lord McIntosh of Haringey

My Lords, I am, of course. I entirely accept and appreciate what the noble Baroness said. What is clear is that we are moving closer together. Let us compromise on the Government's attitude, which is a consolidation position. It applies what has applied to national parks for over 50 years.

Lord Bridges

My Lords, perhaps I may say a few words before we conclude this business in reply to what the Minister said about my amendment. I believe that he has misunderstood what I was trying to do. I noticed that he used a phrase which I saw in the letter to me from the noble Lord, Lord Whitty, accusing me of saying that I was seeking to make all the public authorities responsible for active management. That is simply not the case. I am looking for a way in which we can have an effective partnership between central government and the local authorities, which the present text of the Bill does not provide. Therefore, I hope we shall hear more about this at the next stage of the Bill.

Baroness Byford

My Lords, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 233 not moved.]

Lord Whitty moved Amendment No. 234: After Clause 78, insert the following new clause—

cc492-500
1. GENERAL DUTY OF PUBLIC BODIES ETC 3,877 words
c500
2. ESTABLISHMENT OF CONSERVATION BOARDS: CONSENSUS OF AGREEMENT 111 words
cc500-8
3. COMPOSITION OF CONSERVATION BOARDS 4,061 words
cc508-9
4. OBLIGATION IN RESPECT OF MANAGEMENT PLANS 338 words
cc509-10
5. LOCAL ACCESS FORUMS 520 words
cc510-3
6. LOCAL ACCESS FORUMS: SUPPLEMENTARY 1,147 words
cc513-6
7. REGISTRATION OF TOWN AND VILLAGE GREENS 1,207 words