§ 11.13 a.m.
§ Lord DonoughueMy 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.—(Lord Donoughue.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Amendment of Wild Mammals (Protection) Act 1996]:
§
Viscount Bledisloe moved Amendment No. 1:
Page 1, leave out from beginning of line 18 to end of line 15 on page 2 and insert—
§ "2A REGULATIONS
- (1) There shall be an Authority, appointed in accordance with the provisions of Schedule I.
- (2) The Authority may—
- (a) recognise any body as the proper authority for making from time to time a code in respect of the normal and humane manner of conducting any activity in connection with wild mammals or one or more species of wild mammal;
- (b) after proper consideration, approve a code made by any body so recognised as the proper code for regulating the conduct of the activity or part of the activity in respect of which that body was recognised.
- (3) Where the Authority has approved any code it shall submit that code to the Secretary of State.
- (4) Where the Secretary of State receives from the Authority any code he may either—
- (a) make a regulation recognising that code, or
- (b) write to the Authority setting out the reasons why he does not consider that code to be suitable for recognition.
- (5) Any regulation recognising a code shall be made by statutory instrument and shall not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.
- (6) The Authority shall not exercise any of the powers conferred by this section, unless it is satisfied that it has, or that provision has been made to provide to it, sufficient monies to enable it to exercise such powers.
- (7)At the end of section 3 of that Act, there shall be inserted— "and "recognised code" means a code from time to time submitted by the Authority under section 2A(3) and recognised by the Secretary of State under section 2A(4) and (5) hereof."
The Bill renders it an offence to cause undue suffering to any wild mammal. However, it provides that it shall be a defence if the act is done,
in the normal and humane conduct of a lawful and customary activity".
There are, of course, many different wild mammals and very many different customary activities in relation to those. The Bill covers a scope vastly wider than, let us say, just hunting foxes or other animals. It covers rabbit catching and control, grey squirrel and rat control, minks, coypus, moles and so on and so forth.
An important feature of the Bill is that, for as many activities as possible, there should be a recognised code establishing what is in the normal and humane conduct of that activity, so that it is a defence to show that one acted in accordance with the relevant code. There being many activities, there will inevitably have to be a number of codes, and different bodies and people will be appropriate ones to draft each code. In its present form the Bill empowers the Secretary of State by statutory instrument to recognise or set out code-making bodies for each activity as he sees fit. However, once a body is so recognised, it then produces a code that, without more ado, determines what is a defence.
Three problems have emerged in relation to the Bill as it now stands. First, it may be difficult, and would I think be burdensome, to expect the Secretary of State to find and to establish a suitable code-making body for each activity. I note that the Minister nods at the suggestion that it would be a burden on his department.
Secondly, and perhaps more importantly, your Lordships' Select Committee on Delegated Powers and Regulatory Reform has forcefully pointed out that it was not acceptable for codes which are themselves to provide a defence to be subject to no parliamentary code. In its report the committee said:
Although the regulations"—
§ made by statutory instrument—
"may recognise or establish approving bodies, they cannot provide for any direct control over the content of the codes, nor does the bill itself make any such provision. Accordingly, the effect of the delegation is that the content of a code which will determine whether or not a person has committed a criminal offence will be 549 subject to no Parliamentary control, even though the regulations dealing with the approving body will be subject to affirmative procedure. We consider this to be inappropriate delegation".
§ Thirdly, that committee also said that it disapproved as a concept of the Bill of giving the Secretary of State a delegated power to create tribunals to deal with cases under the Act.
§ I hope that Amendments Nos. 1 and 4 deal with all those points. First, they completely drop the tribunal proposal so that that difficulty goes. Secondly, they provide for an authority established and set out in Schedule 1, which appears in Amendment No. 4. Once that authority is established, it is for that authority and not for government to decide which is the appropriate body to draw up a particular code for any particular relevant activity or activities. If it relates to how rats should properly be killed, obviously it would be a different body from one that dealt with rabbit catching or a form of hunting. Once the authority has appointed an appropriate body in relation to a particular activity, that body then drafts a code and submits the code to the authority. The authority then decides whether it approves of the code. If it does, it submits it to the Secretary of State. If the Secretary of State likes the code, he lays before Parliament a statutory instrument to recognise the code. I hope that that entirely answers the point rightly raised by the committee on delegated legislation in that the code will have no effect unless and until it is approved by statutory instrument.
If, on the other hand, the Secretary of State is unhappy with the code, or with any part of it, he refers it back to the authority and explains his reasons for not being satisfied with it. Thus, under the Bill as it would be if amended, the code is subject to parliamentary control as required by the Delegated Powers and Regulatory Reform Committee. The Secretary of State is relieved of all the tasks imposed upon him by the Bill as it stands, save that he has to appoint the chairman of the authority and decide whether the code should be approved.
There is a central authority selecting the various code-makers and vetting their codes. It is to be hoped that having a central authority vetting the codes will produce a degree of uniformity and of approach which will render both the presentation and the content of the codes user friendly. It is hoped that the central authority will follow a common layout pattern and wording in various codes.
I hope that that explains these amendments which I venture to suggest would be a considerable improvement to the Bill. I beg to move.
§ The Chairman of Committees (Lord Brabazon of Tara)I should point out that if this amendment is agreed to, I cannot call Amendments Nos. 2 or 3.
§ Lord MancroftI support the noble Viscount's amendments. In doing so I declare my interest as a board member of the Countryside Alliance—an organisation which has more than a passing interest in these matters. I congratulate both the noble Lord, Lord Donoughue, and the noble Viscount on the work 550 that they have done on the Bill. The proposed amendments render the Bill even more useful and satisfactory. I venture to suggest that that is a good example of parties with very different interests coming together for the common good. It is a pity that it does not occur more often.
These amendments seek to achieve a system of self-regulation with statutory underpinning. I hope that with these difficult matters that will be the way forward in the future. The system of self-regulation with statutory underpinning relates to what the hunting community now does through the Independent Supervisory Authority for Hunting. In the light of those two innovations over the past two years, I hope that we are moving very slowly in the direction of an overarching wildlife management authority, which is what this country needs and has needed for some time. It is rather a pity that neither the present nor the previous government thought of that. I hope that those innovations are steps in that direction.
These amendments, if accepted, would enable a system to be established that is flexible enough to be capable of being changed as circumstances change over time. That is what we need. Rigid enforcement is much too difficult in these kind of areas. New knowledge and new science will require changes to be introduced if we are to manage these activities while at the same time preserving the best possible standards of welfare.
The Bill as originally drafted was rather unsatisfactory. It was bureaucratic for the Secretary of State to be directly involved in drafting codes of practice. However, it is satisfactory for the Secretary of State to have effectively a power of veto over the codes or a power to agree them and give them his stamp of authority. I hope that the Committee will support these amendments.
§ Baroness Miller of Chilthorne DomerMy noble friend Lord Livsey of Talgarth spoke at Second Reading. He has asked me to apologise to your Lordships as he is unavoidably absent today. I understand that Amendments Nos. 2 and 3 will not be if Amendment No. 1 is accepted.
The Committee should bear in mind that in March 2001 Members of this Chamber made a considerable mistake in believing that self-regulation would gain the public's confidence. I hope that we shall not make that mistake again. I believe that the noble Viscount and the noble Lord in whose names the amendment stands are still under that illusion. I hope that we shall have an authority that is both representative and independent. If that is the case, there might be some possibility of moving forward.
Self-regulation is still envisaged in Amendments Nos. 1 and 4. I believe that there is still widespread difficulty with that concept throughout the country. I do not agree that the amendments offer the prospect of an overarching wildlife management authority when the proposed authority is so narrowly composed.
§ Baroness ByfordI support these amendments. I am not entirely happy with what the noble Baroness, 551 Lady Miller, just said. I believe that the movers of these two amendments tried to overcome the problems to which she referred. That is what prompted me to speak. Certainly when we previously discussed the matter some people were concerned about self-regulation. However, I believe that the amendments before us today overcome that problem and give the Government responsibility for approving the code. The Government will appoint the chairman and will be able to question issues when they arise. I shall be interested to hear what the Minister has to say, but having read the measure through carefully I did not reach the same conclusion as the noble Baroness, Lady Miller. I hope that the noble Viscount will comment on that matter as I shared his interpretation of the measure rather than that of the noble Baroness, Lady Miller.
§ The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)As the Committee will recall, at Second Reading I indicated that the Bill had some desirable effects but that the Government had a number of concerns, not all of which are resolved by the amendment that we are discussing or any other amendments before us today. Nevertheless I welcome the principle behind the noble Viscount's amendment. It moves away from what was otherwise pure self-regulation in certain areas. It also establishes an authority which is at arm's length from the Secretary of State in the first instance. Both of those are desirable moves within the context of this Bill.
However, I have a number of concerns with the amendment. I am concerned most obviously about the composition of the authority. If, as the noble Baroness, Lady Miller, said, the authority is to be representative and independent, I am afraid that the list of members specified in the noble Viscount's amendment does not give the impression of a balanced authority. For example, there is no representation on the part of animal welfare bodies. The movers of the amendment will need to consider whether a more balanced composition would help the progress of the Bill. If it is seen to be unrepresentative, it will appear closer to self-regulation and further away from independent and representative oversight of the areas.
As the noble Viscount recognised, the Bill will also impose costs, but it is not clear from the Bill where those costs fall for either the activities of the authority or the preparation of the codes.
On what may be a wider point, it remains unclear which activities overseen by the authority would be covered by the codes of practice, and which would be considered either outside the codes or as lawful and customary activities even though not in conformity with the code. That seems a central dilemma of the early part of the Bill. As drafted, the Bill provides no guidance on the matter. If a code of practice approved by the authority did not cover an activity, that activity could still be defended as customary and lawful. The Bill would have to resolve that ambiguity before it could go on the statute book.
552 Nevertheless, the amendment in principle moves the Bill on. It deals with some of the concerns of the Delegated Powers Committee and some of those expressed by the Government at Second Reading.
§ 11.30 a.m.
§ Lord DonoughueI would like to thank those who have contributed to the debate, and especially the wide number of bodies consulted in the preparation of the amendment. That has been extremely helpful. We have talked with bodies from much of the countryside and had many talks with representatives of the shooting community, and the amendment meets the concerns raised.
I am sure that the noble Viscount, Lord Bledisloe, will give a more informed response, but I would be very happy to welcome other appropriate bodies on to the authority. On Report, we will have an opportunity for more bodies to be added. For instance, our shooting friends have suggested some scientific bodies, which seems a very helpful suggestion. I am very open to suggestions on that front. The Minister raised the subject of costs, which has been pursued. I am confident that it would not be a problem. The noble Viscount will speak on the point about what is customary.
Above all, I completely agree with what was said by the noble Lord, Lord Mancroft, about progress towards an overarching wildlife management organisation. There is no doubt that that is deeply required in this country. We have made some progress. I point out to the noble Baroness that such a body would be both representative and independent. It would meet the criteria for which she called.
§ Viscount BledisloeI am very grateful to all Members of the Committee who have spoken for their support and their helpful criticisms. However, I must confess that, like the noble Baroness, Lady Byford, I am somewhat disappointed by the reaction of the noble Baroness, Lady Miller of Chilthorne Domer. I hope that the body is designed to be independent, although of course its composition might be improved.
The amendment answers the point made by the Delegated Powers Committee, and I am relieved to find that 1 have satisfied the Committee as the noble Lord, Lord Dahrendorf, has not felt it necessary to tell me that I have failed dismally. It is the Government and Parliament who will decide what is an acceptable code, not the bodies themselves. With their knowledge, the bodies will draft them, but if the Minister or Parliament do not like, it a code will not have any effect. Although the initiative comes from the bodies, it is not self-regulation as Parliament has the control and has set up the offence.
I shall deal with one or two points made by the Minister. He said that there were no animal welfare bodies. The vets might take that a little amiss. I must confess that I had thought that vets were keen on animal welfare. Subject to that, as said by the noble Lord, Lord Donoughue, of course we would welcome suggestions of further names. However, there must be 553 a limit on numbers. If other names are suggested some bodies may have to double up and make a joint appointment, as is already provided for in one instance, rather than merely enlarging the authority indefinitely.
Secondly, proposed new subsection (6) is deliberately designed to ensure that there can be no question of costs falling on the public funds. If no one thinks that the authority is sufficiently useful to put up any money for it at all, it will not happen. So far as the costs of the code-making bodies are concerned, as expected, those would be borne by the authority itself. If it does not have enough interest to draft a code, it is not an appropriate body to be appointed to do so.
On the Minister's third point, I venture to suggest that there is no ambiguity. It is a defence to prove that one's actions are in accordance with either the code or the normal and humane conduct of the activity. It is hoped that a code will be made for most major activities. Some activities, such as moving hedgehogs from remote islands to other places, occur sufficiently seldom not to merit a code. If there is no code, one has to prove the matters in detail or merely fight something on the principle that no undue suffering was caused.
Whether an activity is sufficiently regular, frequent and customary to merit a code will be for the authority initially to decide, and then for the body invited to make the code to consider whether it feels that it is appropriate to do so. No one can make a body produce a code if it does not want to. Basically, if the Bill becomes law, I would be amazed if the relevant bodies in most of the activities were not very keen to produce a code acceptable to the authority, the Secretary of State and Parliament.
In the light of that and the helpful comments that have been made, I hope that the Committee will approve the amendment.
On Question, amendment agreed to.
[Amendments Nos. 2 and 3 not moved.]
§ Viscount Bledisloe moved Amendment No. 4:
§ Page 2, line 15, at end insert—
§ "( ) After section 7 of that Act there shall be inserted—