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Wildlife And Countryside Bill Hl

Volume 417: debated on Monday 9 February 1981

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2.57 p.m.

My Lords, on behalf of my noble friend Lord Bellwin, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—( The Earl of Avon.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Aberdare in the Chair.]

Clause 9 [ Protection of certain wild animals]:

Page 54, line 36, at end insert—

(" ( ) After subsection (8) there shall be inserted the following subsection—
"(9) In any proceedings for an offence under subsections (1) and (1A) any averment that an article is a restricted article shall, until the contrary be proved, be sufficient evidence of that fact.".").

The noble Lord said: This amendment is almost exactly the same as Amendment No. 243 in the name of Lord Houghton of Sowerby. May I suggest that we discuss these two amendments together. The only main difference concerns where this new clause should be inserted. I have no strong views on this. If it seems more convenient that Lord Houghton's choice be adopted, I am very content; but mine is the first amendment on the List. My amendment deals with the 1976 Act and the problems which have arisen under that Act. A lot of the difficulties have arisen in controlling the trade in endangered species because of problems associated with the correct identification of species; ensuring that the terms of reference of licences or permits are valid and with protecting those traders who deliberately avoid customs procedure entirely; the deliberate mislabelling of species to evade controls, for instance, by claiming that a certain species—which is on Appendix I and therefore banned from commercial trade—is a common species upon which there are no restrictions; forgery of documents issued by country of origin, which allows limited trade; and the smuggling of endangered species for sale to private collections. Those are common occurrences which result in a substantial commercial market being illegally supplied with endangered species and their products; skins, furs, feathers, et cetera.

There are two ways of tackling this, and the noble Lord, Lord Houghton, and myself should like to cover both of them. One is by dealing with the strengthening of the powers or the ability of Customs and Excise at the ports of entry. This is what Amendment No. 242 is about. The other way is by strengthening the powers of the police to deal with evasions once the endangered species have entered the country.

Because of these difficulties in controlling the import of restricted species or their derivatives, the 1976 Act also makes it an offence to sell these articles. This amendment seeks to resolve a difficulty over prosecuting for an offence in connection with the sale of restricted articles. At present, a prosecutor must prove, first, the lack of any licence and, secondly, that the article is restricted. However, even if this is proved, it is sufficient for the defendant to declare that so far as he is aware the article in question was either home-bred or imported before the 1976 Act came into force for the prosecution to fail, unless the prosecution can show otherwise, which is very often an impossible task.

It is doubtful whether, when the 1976 Act was passed, this was intended because where the Customs and Excise prosecute in proceedings relating to Customs and Excise, certain matters are assumed unless the defendant proves otherwise. The burden of proof is on the defence; and these matters include the fact that the article in question was imported illegally under Section 154 of the Customs and Excise Management Act 1979. Therefore, prosecutions for unlicensed imports under the 1976 Act do not present a problem, being brought by Customs and Excise and the burden of proof lying there. However, even if a prosecution under Section 4 of the 1976 Act relates to Customs and Excise, the assumptions referred to apply only when proceedings are brought by Customs and Excise or by a Law Officer of the Crown, such as the Attorney General. These prosecutions are most unusual, for the police are the body primarily responsible for the enforcement of offences to sell under Section 4 of the 1976 Act; Section 154 of the Customs and Excise Act does not apply to them. Therefore, the police do not have the same advantages that the Customs and Excise have in prosecuting suspected breaches of the law; and this is an anomalous position.

This amendment seeks to apply the assumption that the articles in question, in a case involving the illegal sale of endangered species or their derivatives, were illegally imported. A defendant could no longer just claim that an article was imported before 1976 without any corroborating evidence. He would have to show that the article was legally imported in some manner, for example, by referring to the necessary licence or to some receipt showing when or where the article was obtained, or witnesses attesting that the article was legally obtained, or witnesses attesting that he had possession of that particular article before the 1976 Act was passed.

The Endangered Species Act is Britain's primary piece of legislation for ensuring that we meet our obligations under the Convention on International Trade in Endangered Species. Unless the commercial market for endangered species is effectively controlled, the illegal trade will continually undermine the efforts of countries of origin of these species to protect and conserve them in their natural environment. I think it is easy to underestimate the skill and ingenuity which goes into the trade in these very valuable and lucrative rare products. A very great deal of effort is expended in trying to smuggle, and therefore a great deal of vigilance has to be used in order to try to prevent this. It is essential that our legislation is as effective as possible in being able to stop that illegal trade, but while this loophole in the prosecution of selling offences exists, it cannot hope to be. Therefore, I hope that the Government will accept this amendment to Schedule 9. I beg to move.

3.5 p.m.

Very briefly, we from this side support any attempt to give the police and the customs a better chance to detect and bring to prosecution the very disagreeable smuggling trade—in particular in birds, which I know about, and in rare animals in general. I think I need say no more than this: unless the Government can give some good reason why there is something illiberal or wrong about this, we hope that they will accept the amendment.

I hope the Government will accept this amendment. We are dealing with people charged with the illegal sale of endangered species; they are the people to whom this amendment relates. At present, as the noble Lord, Lord Beaumont of Whitley, has explained, when a Law Officer or the Customs and Excise are bringing the charge they do not have to prove that the endangered species being illegally sold were also illegally imported. The presumption is in those cases that the person illegally selling was also illegally importing, and it is up to him to produce a licence if he claims that he had earlier permission to import these endangered species, or otherwise to bring some corroborative evidence if he claims that he was lawfully in possession of these endangered species.

However, the police, as the noble Lord explained in moving this amendment, are not put into the same position as a Law Officer or the Customs and Excise, and therefore they are at a disadvantage. I know that we do not like putting the onus of proof on a person who is charged—that is, upon a defendant—because it is a cardinal feature of our system of jurisprudence that the prosecution should prove the charges and that the defendant is not called upon to prove his innocence. Nevertheless, departures from that rule have been found necessary in dealing with particularly difficult and slippery people, and especially when one is dealing with the illegal sale of endangered species. The problem of identification and of proving that a certain bird or animal was illegally imported is very difficult. All the advantage lies with the defendant in these cases and, therefore, I hope that the exceptions that are made for prosecutions undertaken by a Law Officer or by the Customs and Excise will extend to the police.

It may be that what one does for a Law Officer or the Customs and Excise one does not do for the police. That may be a reflection, if you like, on the police, or at least it is perhaps a testimonial to Law Officers or to the Customs and Excise that they would not bring a prosecution frivolously or without a good deal of evidence that the charge could be brought home to the defendant. However, this trade is so squalid, and the people engaged in it so despicable, that I think we are justified in being severe with them; otherwise the protection given to an endangered species ceases to be adequate and they become more endangered still. I think we have to depart in this case from any general rule we might have on this subject and ask the defendant to show at least that he held these endangered species lawfully. The charge against him is that he unlawfully stole them. But, at least, he should prove that they were lawfully in his possession. So I support this amendment.

I also rise to support this amendment. The intention behind the Washington Convention was to protect endangered species by strictly controlling the trade in them. Everyone in this House knows that this just is not working as well as it should. In practice, such rare creatures reach the market because it is claimed that they are a common species and are not subject to control. In some cases, it is almost impossible to tell the difference. Such deliberate, incorrect labelling, forgery of documents and smuggling are all part of this unpleasant trade. Our weapon is the 1976 Act, which the noble Lord seeks to strengthen. Unless commercial markets are effectively controlled, the illegal trade will continue to undermine the efforts of the countries of origin of these endangered species to protect and conserve them in their natural environment. I support the amendment.

I should like to support the amendment in the name of the noble Lord. Lord Beaumont of Whitley. I do so very briefly from experience of having served over a number of years in an overseas customs and excise department, dealing with smuggling. People who enter into this trade do so for profit, and all kinds of subterfuges are adopted by them. I have recently had some experience of the practices followed by people who engage in this trade, and I think that there is a necessity for this amendment. Therefore, I certainly support it.

I do not want to be in any way derogatory about this amendment, because I totally support the principle lying behind it. But if we passed this amendment into law, we should be in danger of putting a lot of innocent people at risk. There are so many bits of ivory which are legally entering world markets. Elephants die and tusks come onto the market legally, and if every tradesman dealing in ivory had to prove that he had a perfect right to it, it would put an enormous onus on him.

I am not trying to be a wet blanket about this, because, in principle, I strongly support the amendment. But it goes frightfully wide and it is on the wideness of this amendment that I should like to hear from the Government. Innocent people are dealing in ivory which has come from dead elephants' tusks and there is nothing wrong with that. The noble Lord, Lord Melchett, and I corresponded for weeks and months on this and I could not agree more that everything we can do to stop illegal trading is all to the good. But how does one get to the root of this? And is this amendment not a little dangerous? That is all I am asking your Lordships to consider.

This amendment relates to living species—not to products, not to tusks and not to skins. It relates to endangered species.

The noble Lord, Lord Mowbray, said that he did not want to be a wet blanket, but I think he was being one.

I am a little surprised at the strength of the arguments which have been introduced in favour of this amendment, and we may have to think about it again. The reason I say that is that we have had legal advice that the powers are sufficient. I am also told that the customs powers which are already in existence are considered sufficient to cover breaches of the import prohibition. This is evidenced by the ever-increasing number of seizures which are made at ports and airports.

I am sorry to interrupt, but the amendment strikes at the question of prosecutions. I hope the noble Lord may be going on to tell us about the ever-increasing number of prosecutions, but I doubt that he will be able to.

I was going on to the question of prosecutions. Obviously, the difficulty here is that the burden of proof, as the noble Lord, Lord Houghton, said, is being shifted under this amendment. As the Committee knows, it is usual in criminal proceedings that the burden is on the prosecutor and not on the defendant. That is the nub of the problem over this amendment. I think most noble Lords would not wish to have an exception to the normal legal process. But, as I said, the case has been so strongly put forward that I shall take further advice and, if it seems that something should be done on these lines, we will amend the Bill on Report.

May I just say with great respect that I think the noble Lord, Lord Houghton, got his last intervention slightly wrong? In fact, this amendment deals with products, whereas the next amendment deals only with living animals. The noble Lord, Lord Mowbray, raised the very important question of the danger to innocent people. I am very well aware of this problem and would not wish to widen unnecessarily the number of cases in which the burden or proof is on the ordinary person.

But I find it difficult to think of instances where, in innocent cases, it would not be very easy for the defendants to prove that they had bought something from someone else or that they had had it some time. This is a case where the enormous number of guilty people who would be caught would not be at all balanced by the innocent. Quite honestly, I cannot visualise, in practice, the kind of case which the noble Lord, Lord Mowbray, quite rightly produced in theory. Having made those two points, I should like to say how much I welcome the Government's undertaking to look at this again, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 241 not moved.]

3.18 p.m.

Page 54, line 41, at end insert—

(" In section 5 of the 1976 Act, subsections (1) and (2) shall be omitted, and there shall be inserted the following sub-sections:—
  • " (1) The Secretary of State shall make an order under this section relating to live animals of the kinds to which Schedule 1 to this Act for the time being applies.
  • (2) An order under this section shall provide that (subject to such exceptions as may be specified in the order) it is prohibited to do the following—
  • (a)
  • (i) either to import by sea any live animal of any kind to which the order is expressed to relate; or
  • (ii) to import any such animal by sea unless it is imported at a port or one of the ports specified in the order in relation to animals of that kind;
  • (b)
  • (i) either to import any such animal by air; or
  • (ii) to import any such animal by air unless it is unloaded at an airport or one of the airports specified in the order in relation to animals of that kind;
  • (c)
  • (i) either to import any such animal by land; or
  • (ii) to import any such animal by land unless it is brought across the boundary into Northern Ireland at a place or one of the places specified in the order in relation to animals of that kind.".").
  • The noble Lord said: This carries on the discussion of the 1976 Act and the difficulties raised by its major exemption. Here we move on from just the products of animals to the animals themselves, and to the method of enforcing with greater efficiency the control at ports of entry. The Endangered Species (Import and Export) Act 1976 is one of the best pieces of EEC legislation to control the trade in endangered species and their products, but as we have already heard there are considerable practical problems.

    At present, we allow trade in endangered species to be continued through any of our land, air or sea ports. This poses serious problems with regard to monitoring the levels of trade in particular species; ensuring the welfare of live species, particularly exotic ones from other continents; providing adequate enforcement controls to meet out international obligations to ban or limit trade in certain wild species; providing adequate quarantine facilities and providing auxiliary expertise, either zoological or veterinary, to customs officers who are experiencing difficulties in the course of exercising their duties.

    Section 5 of the 1976 Act gives the Secretary of State power to restrict places at which live animals may be imported; in particular, to assist the discovery of any importation of species in which trade is banned. So far, this permissive power has not been acted upon and this amendment would oblige the Secretary of State so to designate certain ports. Obviously, if the Secretary of State were to say that he was intending to enforce the power that he already has and proceeded in that way, that would be an equally happy solution to the problem. The principle already is in force for the control of rabies, where only certain ports handle freight in domestic animals. It would seem to be logical to extend this system to wild species as well. The advantages would be considerable. I believe there is reason to think that Customs and Excise would also welcome the proposal.

    It should be stressed that this amendment applies only to live animals. It does not include their products. It is a very limited amendment. At present we expect all our customs officers to understand the complexities involved in differentiating between species, many of which seem similar even to the knowledgeable layman. By restricting ports of entry to a small number, this expertise may be built up among a small group of customs officers who could be effectively and economically trained to identify listed species, the trade in which is banned or otherwise controlled. Moreover, in the case of difficulties, outside expertise could be more easily drawn upon. Already there are experts in species identification. Members of the Species Conservation Monitoring Unit are part of the International Union for the Conservation of Nature who are prepared to assist customs officers, if necessary.

    In the case of live animals turning up at other ports, the problem of identification would not occur. A live animal can easily be rerouted. Facilities for the effective handling of live animals would also be much more readily established, ensuring that their welfare was properly considered. Corresponding checks for disease and quarantine controls would be more effectively enforced than can presently be the case. Many of our obligations as a signatory of the Convention on International Trade in Endangered Species depend upon controlling the trade at entry: checking that licences are in order, verifying their country of origin and intended destination and ensuring that certain species are not traded in. This is a difficult and a wide-reaching task. It would be made much easier by having limited ports of entry.

    The only substantial change in the enforcement procedure proposed by the Wildlife and Countryside Bill is the provision to allow customs officers to inspect on demand the premises of licence holders where live animals or plants which have been imported under licence are kept. That is good, so far as it goes, but it is not enough to overcome the current enforcement difficulties. Europe is currently one of the largest markets in the world for trade in endangered species. For conservation to be effective it is essential that these efforts to protect those species in their natural environment by their countries of origin are backed up by those countries, mainly in the industrial west, where the trade in endangered species is established. It was for this reason that we signed the Convention on International Trade in Endangered Species. This amendment will help to tighten up the enforcement procedure and ensure that we as a nation meet our international conservation obligations. I beg to move.

    3.23 p.m.

    I strongly support the amendment. I think we can congratulate ourselves upon having perhaps the best piece of legislation for the protection of endangered species of any country in the Common Market. There are some things that we are good at. There are other things we are better at than other countries. On those rare occasions when we are better than anybody else it is worthwhile noticing it, just for morale purposes, if nothing else.

    I wish to stress that again we are dealing with living things. The problems over importing the products of endangered species arc difficult enough—obviously it would be almost impossible to channel those through designated points of entry—but for living species it is possible to do what the amendment proposes. Indeed, it is not only possible; it is already permissive, as the noble Lord, Lord Beaumont of Whitley, has said. We want to know from the Minister why the Secretary of State has not so far used the power that has already been given to him—this is important—before we insist that he should. We shall listen very carefully to the reply on that very point. Otherwise, we are minded to start the afternoon with a little show of strength, we hope.

    It is important that every effort should be made to stop some of the scandals that we read about concerning the importing of endangered species from other countries. It is quite reprehensible that the RSPCA, for example, should have to keep a large unit of veterinary and other qualified persons at Heathrow to take care of the scandalous conditions in which many species are imported into this country. It is heartrending sometimes to read of the conditions under which birds and animals arrive. One wonders whatever possesses the so-called human beings at the other end of the line to cram these animals and birds into small spaces, thus killing large numbers of them before they arrive. This amendment would not stop all that, but at least it would enable better provision to be made for reception at designated points of entry. It would also enable the Customs and Excise officers to be more knowledgeable in identifying the kind of species which are banned and upon which they might have to take action.

    I hope that the Minister has a convincing answer to the question why the power already given has not been used. He will have to be equally convincing in persuading us that we should refrain from imposing this obligation upon him if we are of the opinion that the Secretary of State has not been as zealous or as imaginative as he should have been in using the powers already given by the 1976 Act.

    The problem raised by the amendment has for a long time seriously worried both the conservation and the zoo world. I know that the cost of putting right ports of entry is very high—I have written to the Minister and suggested this—but, as the noble Lord has just said, I would ask the Minister to go as far as he possibly can in meeting, if not this amendment the spirit behind it. Each place of entry ideally needs adequate quarantine, adequate temporary accommodation and zoological and veterinary experts and customs officers able to differentiate between the species. We cannot hope that this will happen everywhere but there are ports where the position could be very much improved. From the point of view of the taxpayer, the fewer the authorised places of entry the better and the cheaper the control would become. Therefore I strongly support the amendment.

    In the RSPB we have been preaching this for years and have produced a great deal of information showing the appalling results of this not being done. Nobody in the Governments of either party has ever given a reason which satisfied me for one moment that a great deal more could not be done about it. I hope very much that we can be told that something more will be done.

    Cannot the airlines in particular be prosecuted or made to enforce their own regulations when cases arise of the type which we see from time to time splashed across the national newspapers: birds, mammals, or whatever it may be being imported and being killed in large numbers in their boxes? This really is an affront. Can they not be held more responsible? That is the first question I should like to ask.

    Secondly, I think one must put on record the excellence of the RSPCA hostel at Heathrow. It is extremely good and we should be very proud of it and thank the RSPCA for running it. But there is a caveat that I think one should enter. Let us assume for the sake of argument that the Government accept at least the spirit of this amendment, and somebody uses a port or airfield without facilities for quarantine or veterinary examination. Will that not possibly produce a situation we have not foreseen? I just put that thought into my noble friend's mind before he answers. On the whole, I would support the spirit of this amendment if not the actual wording.

    I should like to ask the noble Earl whether he would accept that at the moment, when there is absolutely no restriction on ports of entry, the problem he has mentioned is much more likely to arise than if the amendment is accepted and there is some protection.

    We touched on this in a short debate on the question whether Clause 14 should stand part of the Bill, and I am afraid that I must oppose this amendment. We have recently undertaken a review of the working of the whole of the licensing arrangements under the 1976 Act, and among all the various aspects considered was the question of whether points of entry should be designated for the importation of live animals. Your Lordships will be aware that a power enabling such designation to be made is already available in the Act, as the noble Lord, Lord Houghton, mentioned. We concluded that there might be a benefit in designating ports of entry for certain species, but that the overall designation of ports would not be of value. There is the constant problem of what to do with live animals that turn up where they are not expected. It is not, for example, in the interests of the animals themselves to have them sent back or even diverted to another port. By the time they get there it may be too late. All the evidence from countries which operate blanket designation is that it does not aid enforcement to the extent that is sometimes claimed.

    There have been recent instances, however, where we have used the power in the 1976 Act to place a condition on an import licence that the consignment be imported at a specified place and even at a specified time. This is an invaluable aid when we have reason to suspect that certain consignments may be irregular, and it is our firm intention to make increasing use of this device. There is a great advantage in that we can get all the exports at the port which has been designated on the licence, and we find that this works extremely well. If ports are designated it encourages people to bring animals in at other places clandestinely. So we believe this is a better system then designating ports.

    I simply do not understand this. It is exactly the point that was made by the noble Earl, Lord Onslow; I did not understand it then and I do not understand it now. If you give somebody a licence and specify a place and a time, say London Airport at 11o'clock, and the animal turns up at Glasgow two days later—in other words, the wrong place is deliberately used, at the wrong time—does that not lead to exactly the same sort of problems as having a blanket designation of ports? I cannot see any difference.

    But they will lose their licence if they do not go to a designated port of entry. If there is a limited number of ports of entry which are designated, of which Heathrow might well be one and perhaps there would be one other, if somebody takes live animals to any other port of entry they will lose whatever licence they might have had. I simply do not see the difference.

    We are of course talking about endangered species. Eighty per cent of the animals that come in are neither endangered nor vulnerable, and it is really about endangered species that we are talking, where a licence is required. If we tie that to the port of entry and even the time of entry it probably gives as good a control of the situation as one could possibly get.

    But the two methods are in no way exclusive. Surely we should have both. The system of designated licences is admirable but it does not exclude the refusal to accept animals elsewhere than at a certain number of ports. I cannot follow the argument at all.

    3.35 p.m.

    Instinctively, a designated port is suggested, and the arguments adduced by the noble Lord, Lord Melchett, are very powerful. But what happens to a peregrine falcon if it lands in an aeroplane at Leith when it is supposed to land in an aeroplane at Heathrow, and the man has a one-off licence and it is said that it cannot land? What do you do with it? Do you send it back? Do you knock it on the head? That would achieve nothing, except that you would fine the man the equivalent of £5,000 which is the value of the falcon, or whatever it may be. It is a very difficult problem. Having listened to the argument, I think that my noble friend has power behind his case.

    The first thing you do is to stop this particular event happening, because the person who sends it to the wrong place, for one reason or another, loses the value of the bird.

    Of course noble Lords who are in favour of this amendment welcome the increasing designation of ports for specific licences. That is very useful and I am delighted that it is being done. It probably achieves a lot, but the Government have said nothing—although the noble Earl was making faces across the Chamber—which makes me want to withdraw this amendment. The point, validly raised, about animals possibly suffering because they come to ports where they are not allowed to come, is, I am sure, true. But I am quite clear that it will be well outweighed by the growing proportion of animals which come to designated ports and therefore are well looked after, and do not run into the kind of problems that we have heard about at other ports and other airfields.

    If I may interrupt the noble Lord, will he accept that the position of an endangered species going to a port which is not designated in future, if the amendment is accepted, as I hope it will be, will be absolutely no different from the present position? If somebody suspects that an animal is being illegally imported, it can be seized and placed with a competent zoological garden, just as happens now. There will be absolutely no change.

    Indeed. Of course there will be problems, but they will be less if this amendment is passed—very considerably less—than if it is not passed. I do not take the other main point which was made about clandestine smuggling. All right, it may be that there will be some. I do not know quite what the Government have in mind. If they are speaking about clandestine smuggling at ports of entry other than the designated ones, it is difficult to see why it should be any more so than it is at the moment, and the chances of discovering a boa constrictor tucked away in someone's suitcase will be exactly the same as they are now.

    I understand that in the United States of America they have had considerable difficulties as a result of their blanket designation. That is one of the reasons why we prefer the licensing system.

    Perhaps the noble Lord would care to expand on that. What kind of difficulties have they had?

    I am sorry, I cannot expand on it. All I know is that they have had difficulties and that is one of the reasons why we have decided on this as being a better system. I cannot say much more on this subject. The noble Lord either withdraws the amendment or he does not.

    If the noble Lord cannot expand on the difficulties that they have had in the United States, perhaps he can confirm that they are maintaining the system of restricted ports of entry and not changing it back to the English system; so that they are not doing what the noble Lord is trying to do.

    They have not changed it yet, but it may be with our good example they will do so.

    If I may continue with my argument about clandestine smuggling, if the noble Lord is saying that this will be not at normal ports of entry but by motor boats from the French coast or something like that, I do not see that that would be any more encouraged if this amendment is passed than if it is not. I must admit that I am intrigued by what the noble Lord the Minister says about American experience. I wish we had been given greater information about this; it seems to me very germane to the Government's case, and after all it is they who are putting this Bill forward. I am surprised that they have not thought fit to enlarge upon this particular argument.

    However, I am in some doubt as to how to proceed. It seems to me that in a way the noble Lord has said that the choice is between withdrawing this amendment and pressing it, and although I would be interested to hear the American experience, I have heard nothing in the Government's argument so far to cause me to withdraw the amendment. Therefore, I think we ought probably to try the feeling of your Lordships' Committee.

    3.41 p.m.

    On Question, Whether the said amendment (No. 242) shall be agreed to?

    Their Lordships divided: Contents, 66; Not-Contents, 83.


    Amulree, L.Blyton, L.
    Aylestone, L.Boston of Faversham, L.
    Balogh, L.Briginshaw, L.
    Banks, L.Brockway, L.
    Beaumont of Whitley, L. [Teller.]Brooks of Tremorfa, L.
    Burton of Coventry, B.
    Beswick, L.Byers, L.
    Blease, L.Chelwood, L.

    Cooper of Stockton Heath, L.Lloyd of Hampstead, L.
    Craigton, L.Lovell-Davis, L.
    Cranbrook, E.Lucas of Chilworth, L.
    David, B.Melchett, L.
    Davies of Leek, L.Milverton, L.
    Diamond, L.Mishcon, L.
    Donaldson of Kingsbridge, L.Oram, L.
    Elwyn-Jones, L.Pargiter, L.
    Evans of Hungershall, L.Peart, L.
    Foot, L.Phillips, B.
    Gaitskell, B.St. Davids, V.
    Gore-Booth, L.Seear, B.
    Gosford, E.Shinwell, L.
    Greenwood of Rossendale, L.Somers, L.
    Gregson, L.Stamp, L.
    Gridley, L.Stedman, B.
    Hale, L.Stone, L.
    Halsbury, E.Strabolgi, L.
    Hampton, L.Strauss, L.
    Henderson, L.Taylor of Mansfield, L.
    Houghton of Sowerby, L. [Teller.]Thurso, V.
    Underhill, L.
    Irving of Dartford, L.Wallace of Coslany, L.
    Jacques, L.Wells-Pestell, L.
    Leatherland, L.White, B.
    Llewelyn-Davies of Hastoe, B.Wootton of Abinger, B.


    Alexander of Tunis, E.Killearn, L.
    Allerton, L.Kinloss, Ly.
    Ampthill, L.Kinnaird, L.
    Avon, E.Lauderdale, E.
    Bathurst, E.Lindsey of Abingdon, E.
    Bellwin, L.Long, V.
    Bessborough, E.Lonsdale, E.
    Boyd-Carpenter, L.Loudoun, C.
    Caithness, E.Lovat, L.
    Cathcart, E.Lyell, L.
    Clancarty, E.McFadzean, L.
    Clwyd, L.Mancroft, L.
    Cockfield, L.Margadale, L.
    Cottesloe, L.Marley, L.
    Cullen of Ashbourne, L.Massereene and Ferrard, V.
    Dacre of Glanton, L.Middleton, L.
    Daventry, V.Monk Bretton, L.
    De Freyne, L.Mowbray and Stourton, L.
    Denham, L. [Teller.]Newall, L.
    Derwent, L.Northchurch, B.
    Drumalbyn, L.Nugent of Guildford, L.
    Dundee, E.Onslow, E.
    Ebbisham, L.Radnor, E.
    Effingham, E.St. Aldwyn, E.
    Ellenborough, L.Sandys, L. [Teller.]
    Elliot of Harwood, B.Savile, L.
    Energlyn, L.Seebohm, L.
    Exeter, M.Sharples, B.
    Ferrers, E.Skelmersdale, L.
    Gainford, L.Soames, L.
    Gibson-Watt, L.Spens, L.
    Gisborough, L.Stanley of Alderley, L.
    Glenkinglas, L.Stradbroke, E.
    Gormanston, V.Strathcarron, L.
    Granville of Eye, L.Strathclyde, L.
    Grimston of Westbury, L.Strathspey, L.
    Grimthorpe, L.Teviot, L.
    Hailsham of Saint Marylebone, L.Trumpington, B.
    Vickers, B.
    Hanworth, V.Vivian, L.
    Henley, L.Wise, L.
    Hylton-Foster, B.Wolverton, L.

    Resolved in the negative, and amendment disagreed to accordingly.

    3.50 p.m.

    had given notice of his intention to move Amendment No. 243:

    Page 54, line 41, at end insert—

    (" ( ) In any proceedings for an offence under subsections (1) and (1A) any averment that an article is a restricted article shall, until the contrary be proved, be sufficient evidence of that fact.").

    The noble Lord said: This amendment was dealt with along with Amendment No. 240. Therefore, I shall not move it.

    [ Amendment No. 243 not moved.]

    Page 55, line 38, at end insert—

    ("Lorisidae TarsiidaeLorises, bushbabies Tarsiers").

    The noble Lord said: I beg to move Amendment No. 244 and, with the approval of the Committee, I shall discuss with it all the other amendments up to and including Amendment No. 271. I promise your Lordships that on this somewhat complicated matter, which I hope your Lordships will understand when I have finished—I think that I understand it—I shall not divide the Committee or seek your Lordships' opinion as to whether I am right or wrong. These amendments show yet another way in which endangered species can be better protected. They are suggested by that body which in the whole world knows best what is actually going on—namely, the IUCN body called the Wildlife Trade Monitoring Unit. That organisation monitors the trade movements around the world of endangered species protected by the Washington Convention. It has practical knowledge and experience of the difficulties of enforcement and of the evasion—often on a very massive scale—of the export and import provisions that nations seek, or should seek, to enforce.

    As your Lordships will know, the Washington Convention, to which we are signatories, lists endangered species in two appendices. The species listed under Appendix I require import and export licences and as a result there is virtually no trade in the animals concerned. Appendix II aminals require licences for export only and there is more or less a free licence trade in them. As presently drafted Schedule 4, which is what I seek to amend, refers only to the animals listed in Appendix I of the Washington Convention. My amendments, apart from a few minor points to which I shall refer later, all suggest the same policy because, as your Lordships have heard when discussing the previous amendments, the schedule which I seek to improve is, I regret to say, virtually unenforceable. Those are strong words, but let me give two examples, and what I say in this connection is common to the whole series of amendments to which I am speaking today.

    Asian elephants are in Appendix I and in Schedule 4. African elephants are in Appendix II and are not in the schedule. However, who can tell the difference in the ivory? I understand that it is impossible to tell the difference. Again, among the cats there are two sub-species of ocelot which appear in Appendix I. All the other sub-species of ocelot are in Appendix II and so they are not in Schedule 4. But the skins of the other sub-species are indistinguishable. One needs the skeleton to recognise one from the other. It is the skins that are traded in and the skins that we seek to protect are, in fact, being dealt in now by unscrupulous traders. So the ocelot as a whole is an endangered creature. The only safe protection is to group all the Appendix I and all the Appendix II animals together, which is what I have done.

    There are old world monkeys, new world monkeys, otters, cats, elephants, monitors and tortoises to mention only a few. I have reduced 85 names to 11. Thirty-one cetaceans and crocodilians are better covered by 12 names. Here is the safe, simple and easily administered way of protecting these creatures. That is the main point.

    There are a number of minor amendments which I should put on the record so that the noble Lord when he comes to reply will, I hope, simply say that he notes what I say and will examine it and correct the Bill at the next stage. I shall deal first with Amendment No. 244. Bushbabies and tarsiers are on Appendix II and should be included to make the new schedule, as I suggest, complete. Amendment No. 251 adds the grey wolf. Appendix I of the Washington Convention contains the population of grey wolves from the Indian sub-continent. All the other populations are in Appendix II. The skin of the grey wolf is indistinguishable, wherever it conies from, and there is an error in having left the grey wolf off altogether, either with or without my amendment.

    Amendment No. 262 is a fascinating amendment. Moschus moschiferus moschiferus, at the top of page 59 is not a Himalayan musk deer at all, or so I am advised: it is a Siberian musk deer. There are three species or sub-species on the two appendices so moschus covers the whole world population.

    As regards Amendment No. 265, at the bottom of page 62 the Bill already does what I am seeking in that buceros bicornis embraces the whole species of great pied hornbill, so the phrase in brackets, "(other-wise known as …)" is, I am advised, incorrect.

    Finally there is my late amendment, No. 251A. Schedule 4 refers to the Baluchistan race of Asiatic black bear. The Baluchistan race was originally on Appendix II but the CITES Convention in Costa Rica added the whole species to that appendix. So my amendment is to insert " selenarctos Thibetanus— Asiatic black bear" which covers all the Asiatic black bears, and that is correct as they are all now on Appendix I.

    In these amendments, apart from the corrections to which I have just referred—and they are only really for the record—I have suggested grouping only where members of the endangered species are on the first or second appendix. With these amendments we go a long way towards affording protection, although I am aware that there are species, such as iguanas and birds, which are not in Appendix I and have been omitted from my proposals because some of the species are not in Appendix II either. So in moving this amendment and praising the new schedule as it stands, I ask the Minister how the Government, without my amendments, can hope to enforce the schedule as it stands. I do not know, and neither does the controller of the Wildlife Trade Monitoring Unit. I beg to move.

    I am grateful to my noble friend for speaking to all these amendments en bloc. I should like to say before going further that we accept Amendment No. 251A, which deals with a drafting error. I must say at the outset that the species of animals listed in the Bill under the proposed Schedule 4 to the 1976 Act are those which are regarded as endangered. As my noble friend has explained, the list is that used under the 1976 Act and is basically Appendix I of the Washington Convention on the International Trade in Endangered Species of Wild Fauna and Flora. Trade in the species on that appendix for commercial purposes is not allowed. Conversely, commercial trade in species not on that appendix is allowed.

    It may also help noble Lords to see these amendments in perspective if I remind the Committee that all the species mentioned—and to be mentioned up to Amendment No. 271—by my noble friend are subject to full licensing control on import or export. For all parts and derivatives from these species that are considered readily recognisable by customs officers, there is also licensing control.

    It is not the Government's purpose to restrict trade in species that are not in danger, and the effect of the new controls on selling is to ensure that without extending customs coverage of imports to a ridiculously wide range of goods, it is nevertheless not legal for a trader to make a profit by selling goods on the basis that they are worth more because they derive from a species in danger of extinction. I should be reluctant to add to the new Schedule 4 of the 1976 Act any species in which commercial trade is permitted under the convention. To do so would entail the consideration of a licence for the sale of these species or any part or derivative from them, and this would constitute too heavy a burden on legitimate trade and have no useful conservation benefit. Therefore, as we have the Washington Convention, by which we abide, we are not at all in favour of accepting any of my noble friend's amendments and I hope that he will withdraw them.

    I followed what the noble Lord, Lord Craigton, had to say as best I could, and it seemed to me that there was a great deal more in some of the points than the noble Lord, Lord Cullen, has given him credit for. For example, if it is completely impossible to tell the difference between two species of ocelot and if the noble Lord cannot do it, if I cannot do it, if the customs officers cannot do it and if no expert in this country can do it, how can it be sensible to list one as being banned from trade and the other as not being banned from trade? It simply makes the banning a mockery; it is a nonsense; there is absolutely no point in doing it. It would be sensible to take that off Appendix I, but of course the noble Lord and the Government cannot do that because they would be in breach of the CITES Convention. Therefore, it seems to me that they are saying "All right, we will obey the letter of the law, but we will make darn sure that it does not work in practice by not listing something which is indistinguishable from the species that we are banning from trade". That is just one narrow point of a number which the amendments of the noble Lord, Lord Craigton, raise, and to which the noble Lord, Lord Cullen, did not even begin to respond.

    The basic point is whether or not we stick to the Washington Convention. If what my noble friend has said about the "look alike" problem is true—and I have no doubt that it is—then it would be up to the Washington Convention to alter its appendices, because this is an international convention and we should all go with it. It is very likely that we would make that suggestion to the Washington Convention.

    If that is to be the stance of Her Majesty's Government at the Washington Convention meeting in New Delhi and of this country internationally on world conservation matters, it is a deplorable state of affairs. We were one of the first countries to ratify this convention. Originally we introduced legislation to ensure that we could control endangered species by using a section of the legislation left over from the Second World War, in order that we could be in the forefront of setting an example to the rest of the world.

    It seems to me to be deplorable for a developed and rich country like ours not to give some sort of lead to the developing world, where economic problems and economic pressures on people are far greater than they are in this country, bad though it may be here at present. For the noble Lord to say, "We will stick to the letter of the Washington Convention, even though we know that that means that our own domestic legislation is a mockery, is totally unenforceable, but that does not matter", surely is not the attitude that this country should take internationally on a matter like this, and it certainly is not the attitude that, so far as I am aware, this country has taken up to now.

    I have not yet spoken, although the Opposition Front Bench has spoken quite a lot this afternoon. Of course, we are going to Delhi with a good plan, and, of course, we are going to Delhi hoping to lead as we have done before. There is no doubt that this Government's attitude will be as it was at the last conference, and we hope to achieve as much and to lead as we did at the last conference. Having said that, we shall certainly read what my noble friend Lord Craigton said and of course we shall see whether we can adapt in some way. But I must back up my noble fridnd Lord Cullen about the Washington Convention; it is there to be our guideline.

    I think that we must press Her Majesty's Government a little more on this recognition point. Let us assume that a chap comes before the customs officer with a load of ivory, puts on a blank face and says, "This is African elephant ivory" when, in fact, it is Indian elephant ivory. The customs officer would not have the slightest clue whether or not it was African. Surely, this is a matter about which we should do something, and we should not allow such a trade to continue. This recognition point seems to me to be the most important of all the points made by my noble friend Lord Craigton. Perhaps the Government could say, "Yes, we will go away and look at this; we understand that this is a major problem, and we must try to do something about it". If they do not do anything about it, from what I have heard it seems that a coach and horses could be driven through the legislation. Please will they go away and think about it constructively and hard, in order to put right this very important matter?

    Surely the noble Lord appreciates that these international conferences frequently produce a result which is the lowest possible denominator. Surely we are interested enough in conservation to take a lead in advance of a conference. This is one way of achieving our object at a conference. It is quite extraordinary that the Government should shelter behind an international conference and will not take any action over these species where clearly the law cannot be enforced. It is a mockery.

    In order to save time, may I say to the noble Earl, Lord Avon, that I was extremely grateful for his response and for his commitment on behalf of the Government to look at this. I am sure that that will also satisfy the noble Lord, Lord Craigton.

    Before my noble friend replies, I, too, should like to support what my noble friends have said. I appreciate what my noble friend Lord Onslow has said. I am sure that the Government are well aware of my noble friend's words of wisdom, but it is slightly annoying that their actions are dragging behind what is necessary. Surely it would be practical for the Government to table amendments before their noble friends and the Opposition do so for them.

    I had rather anticipated the reply which my noble friend on the Front Bench gave. I wanted to raise this matter—and I am grateful for noble Lords' support—because we are genuinely and gravely worried about the question of the "look alikes". We wanted to bring pressure to bear on the Government to make them realise that this is not something which we can stand idly by and watch happen. There is the debate at CITES in New Delhi, and it is timely that this debate should take place now because I am sure that this subject will be discussed at New Delhi. My noble friend Lord Avon said that we will lead as before.

    I do not know whether your Lordships know that at Costa Rica the Government representative—the civil servant concerned—with the assistance of the non-governmental organisations, achieved a most wonderful series of successes at the Washington Convention. We have much to thank him for and I am glad to hear that we shall endeavour to do the same again. I leave it at that. I am grateful that the Government have promised to look at this matter again. I thank the noble Lord for the Himalayan black bear. I think that we shall have to add the wolf because, likewise, that is a clerical error. On that note, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 245 to 251 not moved.]

    Page 57, leave out lines 20 and 21 and insert:

    ("Selenarctos ThibetanusAsiatic Black Bear").

    On Question, amendment agreed to.

    [ Amendments Nos. 252 to 271 not moved.]

    Schedule 9, as amended, agreed to.

    [ Amendment No. 271A not moved.]

    Clause 15 [ Power to grant licences]:

    [ Amendment No. 272 not moved.]

    I have to point out that if Amendment No. 273 is agreed to, I cannot call Amendment No. 274.

    4.10 p.m.

    moved Amendment No. 273:

    Page 14, line 35, leave out paragraph (f).

    The noble Lord said: Matters have moved rather quickly, and I beg your Lordships' pardon while I find the place in the Bill.

    While the noble Lord is doing that, could I suggest that we discuss Amendment No. 274 at the same time, because it is a modified version of the noble Lord's amendment?

    I am delighted that we should consider it at the same time if that meets the wishes of your Lordships' Committee. Mine is a more general and probing amendment. There is this worrying remark, statement, sentence at the beginning of Clause 15:

    " Sections 1 to 8 do not apply to anything done—"
    Then it goes on to list a number of motives for doing things which immediately give a blanket exemption from everything in Sections 1 to 8. Even if every single one of these purposes is correct it does not seem to be a very good thing. Admittedly it has to be done under, and in accordance with, the terms of a licence granted by the appropriate authority. But it is sufficient to say that there are whole areas here which give rather more leeway to the Secretary of State than one would normally have wanted in a Bill of this kind.

    I have put down two amendments, one of which I share with the noble Lord, Lord Houghton of Sowerby, Amendment No. 276. They are probing amendments to find out exactly what is intended by the Government, how they justify these particular exemptions, and to allow them to give what I think are very necessary assurances that the permissions that they give, and the licences they give, will be very limited, and will deal with specific points which they have already thought about and which they are now prepared to explain to your Lordships' Committee.

    The first one I have chosen with the noble Lord, Lord Houghton, is paragraph (f). Licences can be granted to do anything in Sections 1 to 8,
    "…for the purpose of providing food for human consumption or for poultry, ornamental ducks, ornamental geese, or swans; "
    I repeat,
    "… for the purpose of providing food for human consumption ".
    That seems fairly wide in itself, if it really does give blanket powers to the Secretary of State, and it is not necessarily acceptable as it stands. But the second half of it I do not understand one little bit. I understand,
    "for the purpose of providing food for human consumption",
    but I do not understand the second half. Is the grammar of this that it is,
    "… for the purpose of providing food … for poultry, ornamental ducks, ornamental geese or swans;"
    or is it even more recondite than that? Why indeed, if it means that, should you have to take special steps and give licences under Sections 1 to 8 in order to feed ornamental ducks? I am completely baffled by the second half of this, and I look forward with interest to the Government's explanation. I beg to move.

    4.14 p.m.

    May I speak to my amendment, which is the next one? First, I should like to agree with the generalities which the noble Lord put forward as to the whole of these exceptions. We want to scrutinise them very carefully and see that the exceptions are limited and, so far as possible, specific, and I shall move amendments to that effect a little later. In relation to this particular amendment it clearly is historical in some sense. It makes no sense in this country whatever. Because the collecting of any form of egg is forbidden, except for the collecting of gulls' eggs for human consumption, it should make that available by licence. We do not want everybody collecting gulls' eggs everywhere, but those people who wish to do so can perfectly well get a licence to do so. That is as far as it should go. The other things in the amendment, as the noble Lord said.

    "… poultry, ornamental ducks, ornamental geese or swans;"
    are entirely irrelevant and should be cut out, though my amendment is only to insert the one thing which is sensible; and I hope that of the two amendments noble Lords might prefer mine.

    I should like only to strike a slight note of discord here. If this amendment means that everybody has to get a licence to collect gulls' eggs, I think that the Government would be in great danger of seeing this law disobeyed very often. That would be a pity, because this includes the eggs of the black-headed gull and a vast number of people throughout the country pick them up and eat them and sell them, and all the rest of it. The black-headed gull, as we all know, and the RSPB know very well, is a bird which if you take its nest the first time will go and lay a second nest. It is in no danger whatever of being in short supply. I hope that this amendment does not go quite so far as I think it does.

    May I say a word on that? The intention of this amendment, and like that of the noble Lord it is a probing amendment, is that we want to stop the freedom given under paragraph (f) that if the purpose is

    "providing food for … poultry, ornamental ducks, ornamental geese or swans; "
    you cannot get a licence for it. We do not want to exclude the perfectly legitimate collection of gulls' eggs. I have no doubt that in certain areas for commercial collection it might be desirable to get licences, but for individuals collecting where there are plenty if a means can be found of making this all right, I should not object.

    Can my noble friend answer this? As I read it, it means that you can apply for a licence to feed a black-necked grebe to your ornamental swan? Is that true? If it is, it seems a funny state of affairs. I may, needless to say, have utterly misread the clause.

    These exceptions subject to the granting of a licence go very wide indeed. I wonder whether somebody sat down to find all the possibilities of the situation and stick them on the list, because we come in a moment to,

    " for the purposes of any public exhibition or competition; ".
    Then we come to photography. I wonder there is not a paragraph at the end, "and for any other purpose not covered by the above". The wide descriptions of possible exceptions subject to licence suggest that somebody is contemplating very wide permission to escape the probitions of the new law.

    When one looks at the principal clauses concerned I to 8 and 9 to 12, and then looks at the provisions here in Clause 15 regarding animals and birds, one wonders whether there will be any real protection at all. Considering that the licences can be granted as freely as some bureacracy decides, or depending on how ready they are to respond to strong claims for exemption, it seems to me that far too much licence has been given for the issue of licences. That is why 1 support the amendment relating to paragraph (f) and it may not be necessary for me to speak again on paragraphs (h) or (j). These conditions of licence need to be scrutinised with care because this is the final let-out in the Bill. While all the others that go before are quite extensive on their own, this is the final one because, subject to a licence, one can do all the things that are prohibited earlier in the Bill and listed under these various headings.

    Surely at the end of the day one would have to convince the licensing authority that one had a case, and I have always found it difficult to convince civil servants that I have a case; they are always very well prepared by Ministers and people like the noble Lord, Lord Houghton. I think the noble Lord has missed the point. One cannot do it just because it says in the Bill that one is providing food for an ornamental duck; one must convince the licensing authority that it needs to be done.

    I assure the noble Lord that I have not missed the point. It is just that perhaps he has greater confidence in bureacracy than I have.

    The noble Lord, Lord Beaumont of Whitley, has raised an interesting point. I have raised it personally and so far I have had no satisfactory answer. I would therefore ask the noble Lord to withdraw his amendment at this stage, and if I still do not have a satisfactory answer by Report, I shall ensure that the offending few words are removed—that is, not the gulls' eggs for human consumption part of it but the ornamental side of the amendment. As I say, I have been trying to find the answer but have so far failed to do so.

    Coming to the gulls' eggs side of the matter, in particular Amendment No. 274, I do not know to what extent the Committee would like me to deal with general licensing at this stage, but this is an ex- cellent example of where one would have a blanket licence for the collection of gulls' eggs. Later, when we come to specific licences—again an amendment in the name of the noble Lord, Lord Donaldson—I shall make the point that this is the sort of example where we do not want to be all that specific because it would obviously be impossible to licence everybody collecting gulls' eggs in Scotland. I would remind the Committee that in an earlier debate I explained that to sell gulls' eggs also needed a licence.

    I assure the Committee that we do not intend to issue licences that would go beyond what is allowed in the 1954 Act, and of course none would be issued to allow the taking of eggs of species in areas where it could harm the conservation status of that species. However, we resist the amendment, as it would, among other things, prevent the issue of licences to take the eggs of the lapwing, which currently can be done before 15th April. There is not, we are informed, a conservation case for introducing a total ban on this traditional activity. If in the future it was shown scientifically to be necessary, licences would not be issued. I hope I have made myself clear to the noble Lord.

    Yes, but I should like to see what sort of amendment the Government produce. There are difficulties here. I do not wish to make it illegal to pick up a gull's egg. On the other hand, I do not wish to agree to blanket licences, something that could be most dangerous, although we shall discuss that on a later amendment. I am therefore in rather a dilemma in knowing how to play this hand. It might be possible to have a licence covering a very limited area, or something of that sort, so that the collection of gulls' eggs, about which we heard such a sad story concerning Scotland, could be carried out in that area. However, this is a probing amendment and we shall be interested to see what the Government produce on this subject. On that basis, I beg to ask leave—

    First may I say a brief word about the lapwing? I remember that in 1954 and 1967 we had endless discussions about the taking of lapwings' eggs. That has not arisen yet, but obviously the taking of their eggs would be covered by the amendment and I would be grateful if the Minister could comment on this later in the Bill. As I understand it, under the 1954 Act is was possible to take lapwings' eggs before 15th April in any year and to sell them, but under the 1967 Act it was made illegal to take the eggs of this species before 15th April, and the sale of the eggs was also forbidden.

    I understand that the EEC Directive on the Conservation of Wild Birds prohibits the taking of birds' eggs except under licence. That applies to all birds except those on the pest list. In future, therefore, it will be illegal to take lapwings' eggs at any time except by licence, and I presume the same applies to gulls' eggs for human consumption. It will be necessary, I understand, to have a licence to take the eggs of any bird other than those listed in Part II of Schedule 2. Licences will no doubt be given for those purposes, certainly for gulls' eggs and maybe for lapwings' eggs, but presumably—and I hope I am right in saying this—they will be given to persons only if they can demonstrate that they have the landowners' permission and that there is no conservation problem. I shall be grateful if my noble friend can confirm at a later stage what I have said.

    That emphasises the weakness of the point made by the noble Earl, Lord Avon, that this would be a good case for general licences; if we are to ensure that the landowner's permission has been given, that of necessity must mean that licences are specific.

    If a general licence were given subject to the landlowner's permission, that would not necessarily follow.

    So far as my amendment is concerned—the one which the noble Lord, Lord Donaldson, was trying to withdraw—I have some sympathy with him because I am delighted that the Minister is seeking an explanation himself. When he has got it, I trust he will share it with me, I hope in ample time for the Report stage. In the meantime I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 274 not moved.]

    4.28 p.m.

    The noble Earl said: I shall, with permission, speak at the same time to Amendments Nos. 278, 314 and 319, which are consequential. These are complementary and technical amendments which have the effect of transferring the purpose of preserving public health or public or air safety for the granting of a licence from paragraph ( g) to the paragraph before ( k). If this is done, the three public policy purposes will be listed consecutively. This sequence of listing will also accord with the sequence used in Amendment No. 52, to which your Lordship agreed as long ago as 27th January. The latter amendments, Nos. 314 and 319, adjust the appropriate reference in the context of the licensing authority and on consultation as a consequence of the proposed change. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 276:

    Page 14, line 40, leave out paragraph (h).

    The noble Lord said: This is, so far as I am concerned, another probing amendment, although the noble Lord, Lord Houghton of Sowerby, may have deeper motives than I have. The Notes on Clauses say:

    " The Bill includes in Clause 6 a restriction on exhibition for competition purposes. The new purpose is included to allow the possibility of other birds, besides those in Schedule 3, being exhibited ".

    That is a very wide little piece of legislation, is it not? to empower the Secretary of State to produce licences

    in order to exempt from the whole of Clauses 1 to 8 for what is a rather small purpose. However, that is the wider question which I have already said something about.

    On the rather narrower question, surely the correct way to deal with the possibility of birds other than those in Schedule 3 being exhibited is to expand Schedule 3, rather than to make possible this blanket exemption. I am a humble seeker after knowledge, and with those words I beg to move.

    I think that I can help the noble Lord, Lord Beaumont of Whitley, a little on this matter. This new purpose has been included as a consequence of the restrictions placed on the competitive showing of wild birds in Clause 6, which limits such showing to specimens of species listed in Schedule 3, Part I, and would permit the showing of captive-bred specimens of other species under licence, subject as usual to consultation with the Nature Conservancy Council. We would not normally expect to issue such a licence for birds which have not been captive bred. As aviculturists improve their ability to breed certain species, this licensing provision will be of value in monitoring the progress of certain species from the category that cannot normally be freely exhibited to the ultimate addition to Schedule 3, Part I. That is something which my noble friend Lord Cranbrook may rather like. I hope that I have clarified this point sufficiently for the noble Lord.

    Yes, indeed; I am grateful to the noble Earl, and I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    4.32 p.m.

    The noble Lord said: I made a general comment on this clause a moment or two ago. I should like to know in what conditions photography would justify the granting of a licence to do something which otherwise would be unlawful. What kind of situation is envisaged in the granting of a licence for the purpose of photography? Is it to kill something in order to take a photograph of it, or what? I am a little dim on this. I cannot understand why it is necessary to grant a licence to do something dreadful to a living thing—an act which otherwise would be unlawful, but which is justified if one has a licence for the purpose of photography. Any good ideas that come from the Front Bench opposite I shall be prepared to consider. I beg to move.

    I should like to say a few words on this point, since I have suffered from it in Scotland, where I have some very rare birds, such as the peregrine, the golden eagle, and one or two others. I am all for having photographers licensed. I understand that they will be licensed on the advice of the Nature Conservancy Council by, I suppose, the Secretary of State, but will the landowner be informed when the licence is granted? I ask that because I think of instances involving amateur photographers, many of whom come and ask, "Where is the eyrie?" If we do not like the look of them, we always send them in the opposite direction. Many people come along saying that they are ornithologists or are members of the Royal Society for the Protection of Birds. Of course they may be members of the society, but that does not mean that they are very expert at photographing extremely rare and shy birds. I should like to ask my noble friend on the Front Bench whether the landowner is told that people are coming to take photographs of his rare birds. I do not really understand how this works.

    I do not see how it would work under a general licence; I quite agree. From the RSPB point of view, we think it desirable that most careful restrictions be imposed regarding photographing certain rare birds in certain rare conditions, and that it is done only under rather scarce licence. Apart from that, people who like to photograph birds can go to our reserves, where there is no landlord who has to be asked. From hides which we provide, they can, without licence, take what photographs they like of anything they happen to see. That is about as much as we can do for the bird photographers, I think, but the scientist must be looked after.

    The Nature Conservancy Council has been empowered to give approval to the photographing of wild birds since the offence of disturbing birds while nesting was created in the Protection of Birds Act 1967. There is therefore an established procedure for authorising photography. The offence of disturbance will under the Bill be extended from nesting birds to include young birds; that is in Schedule 1. There is a need therefore to modify the arrangements for authorising photography, and it is sensible to incorporate them within the licensing procedures. The availability of a licensing arrangement will enable the Nature Conservancy Council, as licensing authority, to determine who would be a suitable person to be allowed to photograph specially protected birds during for instance, the breeding season and to assess the circumstances in which photography should be allowed. I would submit that the alternative to a licensing system would be a total disregard for the disturbance of the birds—which I think some noble Lords have already been hinting at.

    So far as landowners are concerned, the licence will enable them to see whether someone should be on their ground taking photographs. The licence also makes it clear that it does not give authority to enter land in circumstances which would be trespass. Bearing that in mind, I think that this photography is a process which, provided it is subject to strict licensing, is of benefit to people in all walks of life. I hope that the noble Lord will be prepared to withdraw his amendment.

    I am grateful for that explanation, and I am persuaded. Therefore I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Page 15, line 1, at end insert—

    (" ( jj) for the purpose of preserving public health or public or air safety; ").

    The noble Earl said: I am grateful to my noble friends for having tabled this amendment. It is a logical consequence to the amendment to Clause 4 which has already been accepted. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 279:

    Page 15, line 5, after (" to ") insert (" livestock ").

    The noble Earl said: I apologise to the Committee; I spoke to this amendment on the previous amendment, which was consequential. This amendment has been tabled by three of my noble friends. It is a logical consequence of the amendment which was made to Clause 4. I beg to move.

    Before the amendment is agreed to I wish very briefly to repeat some of the points that I made when this matter last arose. We can agree to this amendment only on condition that we are given a new definition of "livestock", and I want confirmation that we are to be given that. We do not agree to game birds being included in the definition of livestock because we think it is impossible to protect birds of prey, if a licence to shoot can be got if they take game birds which are being reared in the wild. This matter has been fully discussed, but it depends on the definition which we have not yet had. I wish to reserve my position on this matter, with all guns firing, in case something goes wrong later.

    The idea is that the definition that we now have of "livestock" will be withdrawn. There will therefore be no definition of livestock, on the grounds that the normal dictionary definition will be used, rather than a definition especially intended for the Bill.

    Does that mean domestic creatures? If it does, I am content.

    On Question, amendment agreed to.

    4.40 p.m.

    moved Amendment No. 280:

    Page 15, line 5, after (" to ") insert (" sheep or lambs ").

    The noble Lord said: We had hoped that the bronze medal which we had been given under Amendment No. 279 might have been extended to No. 280. I certainly feel that sheep and lambs should be included here, and I will not weary your Lordships by speaking any longer. I beg to move.

    As an amateur shepherd of some standing, I am happy to agree to this.

    This really is consequential on the one before, because having put in, by Amendment No. 279, the word "livestock", sheep and lambs are of course included.

    Amendment, by leave, withdrawn.

    moved Amendment No. 281:

    Page 15, line 5, leave out (" any other form of property or to ").

    The noble Earl said: This amendment is again consequential on two amendments which have been accepted, Nos. 43 and 52. It would remove from the purposes for which a licence could be issued against birds the prevention of serious damage to "any other form of property". This removal is necessitated by the terms of Article 9 of the European Community directive. I beg to move.

    Can my noble friend confirm that he is looking at the question of the words, "any other form of property ", in view of the precedent I gave him when we last discussed this?

    Yes. I think it was my noble friend Lord Stanley who told the Committee, when we were considering Clause 4, that he considered that the revised provisions in that clause would not adequately provide for emergency control to deal with all forms of serious damage if these words were omitted. We are looking at that again. We believe that all situations where control measures require killing or taking are covered by one or other of the purposes listed in Clause 15(1). However, I know of my noble friend's concern and I will let him know by letter if I am wrong.

    On Question, amendment agreed to.

    [ Amendment No. 282 not moved.]

    moved Amendment No. 283:

    Page 15, line 8, leave out (" appropriate authority ") and insert (" Nature Conservancy Council ").

    The noble Lord said: We start a new topic of discussion here, and, if the Committee agree, I should like to speak to, first, Amendment No. 283, which is the amendment called, and also to Nos. 289, 293, 304, 308 and 316. The issue here, put in its bluntest way, is: is the right body to issue licences a body which represents one part of the community only? It is almost inevitable that at some time, however fair they may be, they will favour the farmer, whom they represent, rather than the nature lover or the conservancy lover, who will be asking for something. At the moment I think the relationship between farmers and nature lovers is not half bad. We have had very little trouble in your Lordships' House, and we have some fairly extreme representatives on both sides, of which I am happy to be one, though I also belong to the other because for many years I have made a living farming. But the fact remains that it is a highly questionable decision to take one department of government, which in many ways is the best of the lot (it is a jolly good department, and I have had to deal with it for years) but whose main interest is one particular side of the problem, and give it the right to check people on the other side who wish to go a little further.

    We believe that the correct thing to do would be to give this right to the Nature Conservancy Council. The Nature Conservancy Council is the Government's adviser on conservancy as a whole; conservancy includes agriculture, and is meant to include agriculture; so there would be no loss from the agricultural point of view. At the moment it looks as if, for various purposes under the Bill, there would be at least four separate Government departments empowered to grant licences; that is to say, the Secretary of State for the Environment himself, MAFF, the Nature Conservancy Council and also, presumably, the Department of Agriculture and Fisheries of Scotland, the Scottish Home and Health Departments and the Welsh Office. This is the kind of thing which is always apt to happen, and I think that a Bill of this kind is the sort of place where this ought to be straightened out and made absolutely clear.

    Our earnest wish is that the granting of licences should be the duty of the Nature Conservancy Council in discussion with whatever appropriate department is involved. This means that you would always go to the same place—the Nature Conservancy Council has regional offices, and a telephone call to the regional office would deal with the thing—they could build up a case history of the way they dealt with this, which if you had several departments engaged it would be very difficult to do; and clearly you would get a much quicker answer than if you had to consult three or four departments. I really think it is unanswerable.

    Certainly the EEC directive on the conservation of wild birds requires member states to send a report to the Commission each year on the implementation of Article 9. This is the article which allows for delegations (which are the things we have been talking about) under this subsection (1), thus making provision for the granting of licences; and, clearly, if one body were handling licences I think the report would be a great deal more accurate and probably a good deal more punctual than it would be if it was done in any other way.

    There are one or two changes in current practice which, were my amendment to fail, would cause a good deal of concern among the voluntary nature conservation bodies and the many thousands of people who appreciate our wildlife. There is a considerable involvement of the Ministry of Agriculture in the licensing arrangements as presently drafted in the Bill, and I recognise that they and the Department of Agriculture and Fisheries in Scotland have a considerable interest, particularly where the potential exists for birds or mammals to seriously damage crops or property. But it must be recognised that their interest reflects the wishes of one group, the agricultural industry, out of many others who may be involved.

    In the past the Ministry has not always had our unqualified approval when handling problems associated with such damage. The licensed culling of oyster catchers authorised by MAFF a few years ago springs to mind. The scientific evidence upon which the authority for the cull was based was conflicting, based on widely inaccurate figures and generally most unsatisfactory. I am pleased that the culling of oyster catchers at the Burry Inlet, at least, has now ceased. That is a very good example of exactly the sort of thing which should not have happened but which did happen.

    I realise that there is an element of conflict of interest here, but I am in any case opposed to the granting of sweeping licensing powers which could be abused, and, as I have said before, in a short while I shall move amendments to deal with this. But I should like to look in a little detail at the position of birds in Schedule 1 to the existing Protection of Birds Act—those rare species which will continue, with minor amendments, to be carried forward in this Bill. In the 1967 Act powers were taken to enable licences to be granted to take or kill specially protected birds in order to prevent serious damage to crops or property. Such licences, however, would only be issued by the Secretary of State after consultation with the appropriate advisory committee on wild birds. Thus, a good case had to be made, and the evidence carefully and properly considered, before a licence could be issued to allow someone to kill one of the rare birds listed in Schedule 1.

    But in this Bill the power to grant licences for such purposes will be extended to cover all birds, including the rarer ones, and the package handed over to the Ministry of Agriculture. This is a major departure from what already exists and works quite well. I find the prospect of this really rather daunting and, from our point of view, quite unacceptable. The Schedule 1 species are the ones for which we must make the maximum effort, allowing the birds to be killed only if all other solutions are tried and have failed. A cool, impartial and scientific assessment of the facts must be made. This seems to be a retrograde step.

    If my argument is accepted that, on the grounds of efficiency and economy, one agency alone should handle the licensing, it seems logical that that should be the Nature Conservancy Council. The Nature Conservancy Council does not want these powers; they are not anxious to do this job. I can hardly blame them. They are not given enough money to do properly what they already have to do. But somebody must do the licensing and, surely, it is far more appropriate that they should do it. Why should it cost them more than it costs MAFF to do it? At worst, if the Government will not accept my view and would make a compromise, at least the Department of the Environment is, at any rate, neutral and has a responsibility for conservancy of a stronger kind even than that of MAFF.

    I think the kind of argument which may be used against my point is that it is very likely that the most informed local advisers are the ADAS ones; but this Government have been constantly cutting them back, have reduced their strength very much and have been trying to encourage them not to do things outside their purely farming business. So I think that that argument falls to the ground. I feel strongly about this and I very much hope that we can be given some satisfaction from the Government over this which is the first really major point we have had this afternoon. I beg to move.

    I was interested in the approach made by the noble Lord, Lord Donaldson. I wonder whether my noble friend could help us. The Secretary of State must ultimately be responsible, I understand for issuing licences. Will they not therefore be issued by a Government department rather than an advisory body? If that is so, one could achieve part of Lord Donaldson's objective by the department (whatever department it might be) issuing the licence on the advice of the NCC. This might be the right way. If I had to choose between the Department of the Environment and the Department of Agriculture then, as a countryman, I am bound to say that I would take the Department of Agriculture every time.

    Before my noble friend replies, could I say to the noble Lord, Lord Donaldson, that I do not agree entirely with the arguments which he has put forward. The reasons are these. First and foremost, the NCC is an agency and not any part of Government. As he himself said it is an advisory body. I know that the RSPB would like the NCC to take this on. Indeed, the noble Lord is producing the RSPB argument this afternoon. But we must look at past and present experience in this. If one looks at what happened in the Berwyn Mountains, it was there that the NCC, acting under great pressure from the RSPB, brought in something which was going to take over a vast area of Wales under an SSSI. This is just an example of how strong is the RSPB in the councils of the NCC. The noble Lord is quite right when he says that the NCC do not wish to take this on. I do not think it would be an appropriate job for them to do.

    As to his argument against the Ministry of Agriculture dealing with this, I can only speak for the part of the world that I come from. I believe that the attitudes of the Ministry of Agriculture are not quite as he put them. I would say that the Ministry of Agriculture is far the best of the various authorities which he brought forward this afternoon. I will not say more except that I hope the Government will not accept this amendment.

    I, too, should like to support what my noble friends Lord Home and Lord Gibson-Watt have said about this. When the noble Lord, Lord Donaldson, said that the last people who want these powers are the NCC, he was speaking words of gospel truth. The Department of the Environment, the Secretary of State, have the task of appointing this body. They are a very sensible, wise, advisory body. Advising is their function. I should have thought that in this country the last thing that we would want to do is to give a scientific advisory body actual, factual powers of saying yea or nay. You will make for them enemies they do not want. You will give them powers they do not want.

    The Ministry of Agriculture is concerned with one of the main industries of this country, the production of food. Yet they are people who are of the country. They are well aware of where the laws of nature and agriculture cross. They do cross, we know. Sometimes, for more yield, one can do things which are not good for nature. The Ministry of Agriculture are not fools, I would suggest. I do not think they are peopled by hardfaced bureaucrats, but they are people who put on gumboots and get about the countryside. I should like to suggest that the noble Lord, Lord Donaldson, in trying to press this amendment—and it is not just this amendment, but the principle we are coming to in future amendments—should not try to make two Government departments fight each other. The Department of Environment and the Ministry of Agriculture should be complementary. We must not try to create obstacles where they do not exist.

    Could the noble Lord explain whether he is opposed to the NCC issuing any licences—which is what I take from his words? In that case, is he objecting to Clause 15(8)(c) where the Bill gives the NCC power to issue licences under a number of provisions of the clause? This seems to contradict what the noble Lord, Lord Mowbray and Stourton, had to say and also some of the remarks that the noble Lord, Lord Home, made earlier.

    I want to say a word about this. I feel strongly about it. In a long experience of farming, I have always dealt either with the Ministry of Agriculture in England or the Ministry of Agriculture in Scotland. I have never had to deal with the NCC and I think most farmers would find it rather strange if they suddenly had to deal with another organisation which they have never had anything to do with because no question of interference with conservancy had ever arisen. The Secretary of State for Scotland, whom the noble Lord, Lord Donaldson, mentioned, is the authority which I think is the right authority to be used on this and other occasions where agriculture is involved. It is the same thing with the Ministry of Agriculture. I am all for consulting with the NCC if required and for their giving such advice if asked to do so but I do not think that they should be a licensing authority.

    5 p.m.

    As some noble Lords know, I am a member of the NCC. I am not their spokesman but, naturally, my views on this particular subject reflect theirs, as we have discussed this matter at some length. May I for two or three minutes put on the record what generally speaking they feel about it or, at any rate, what I feel about it? I feel that the status quo should be maintained whereby the Department of the Environment and the Scottish Department remain the licensing authority for all purposes where a balance is needed between conservation and any other interests. The department currently exercises this role in local orders and through specific licences for Schedule I birds. The NCC, I feel sure, are willing to continue to administer those elements of licensing, such as licences for scientific research, ringing, marking or photography, which do not involve reaching judgments beyond those relating to the interests of wildlife conservation—in other words, only those things which are consistent with their present statutory role. A logical arrangement therefore would be for the DoE and the Scottish Department to be the sole licensing authority for those areas where the question of balance enters into consideration. That really ought to include agricultural damage. I do not think it is right that the Ministry of Agriculture should be judge and jury in its own case. They have a very special job to do for agriculture. I doubt whether they have the expertise or the capacity to ensure that the need for pest control was properly substantiated—at any rate, without the advice of the Nature Conservancy Council—that methods other than killing had been adequately explored or that the terms and conditions of any licence were properly enforced.

    I doubt very much whether that is really a job for the Ministry of Agriculture, though they are of course under an obligation to consult the Nature Conservancy Council if this job remains with them. The DoE has and should continue to have the primary administrative responsibility for conservation purposes for anything basically within the Protection of Birds Act. There is a major point which is that quite frankly the Nature Conservancy Council, as the noble Lord, Lord Donaldson, has admitted, do not have the resources. Even if we had them we would not want to do these jobs for which we do not have the knowledge or expertise.

    I think that it would be rather ridiculous to expect the Nature Conservancy Council to issue licences for the purpose of preserving public health or public safety, which they are down for at the moment, for the purpose of preventing the spread of disease or for these agricultural purposes. That does not come within their remit. The Bill has the balance just about right, excepting that there is, so far as the Nature Conservancy Council is concerned, something in Clause 15(2)(e) which is right outside the responsibility of the Nature Conservancy Council:
    " for the purpose of preserving public health or public safety ".
    That cannot be the Nature Conservancy's job. I would have thought that the DoE should have that. I hope very much that the Bill will remain broadly as it is and that these very heavy responsibilities will not be put on a body which really is not appropriate.

    I have my name down on this amendment. I hope the Government will consider it and, if they cannot accept it, then come back to it at Report stage. Having read the different matter on it, I should like to support the noble Lord, Lord Donaldson, that it seems sensible that the Nature Conservancy Council should be given this task. It is appropriate and I cannot see why it should cause any ill-feeling in any way. In reading all the matter which I have read about it from different bodies, I would have thought that they should not be afraid to take this on. If they need more money, surely that is one body for which the Government should try to find a means of supplying the necessary finance.

    Having listened to the arguments, I am not sure that the Bill, as it stands, is satisfactory. Who is to know which the appropriate authority is? I should be hard put to judge myself. But I understand the objection to the Nature Conservancy Council being the licence-granting authority. It should be the Ministry of Agriculture in consultation with the Nature Conservancy Council.

    May I respond to Lord Donald-son's Amendment No. 283 and speak, as he did, to Amendment Nos. 289, 293, 304, 308 and 316 first. On the territorial matters, the aim is to have a Great British licence and a Great British licensing authority as such. I feel that I should open by saying a few words about the Ministry of Agriculture. I should like to allay what I think are groundless fears by assuring the Committee that the Ministry fully intends to operate on the principles outlined by my noble friend Lord Bellwin in the Second Reading debate; that is, that licences will be issued in accordance with policies which take account of the extent of damage caused, the conservation status of the species involved and the availability of alternate methods of preventing the damage. I should also like to say that there is an administrative agreement between my department and the Ministry of Agriculture that all Schedule 1 birds will be licensable by only the DoE.

    That is not in the Bill, is it? This is an internal agreement?

    If I could repeat myself, this is an administrative agreement; an internal agreement. Regarding licensing, my noble friend Lord Home asked whether the NCC could give a licence. I nodded the wrong way at the time. They can give licences. As my noble friend Lord Chelwood mentioned, they have been giving licences for photography and will continue to do so. As one or two noble Lords pointed out, the responsibility rests with the Government no matter which part of it is the licensing authority for any particular purpose. However, we have attempted to give the responsibility to that branch of Government which is best equipped to exercise it. Thus while licences for the photography of birds which are based solely on the scientific judgment has been allocated to the NCC, licences for precautions against spread of disease or the safeguarding of crops will go through the Ministry of Agriculture Fisheries and Food, whereas for all other purposes they will go through the Department of the Environment.

    The amount of scientific judgment varies between the purposes listed in the Bill and for example the purpose listed under paragraph (b) of Clause 15(8) are considered basically to involve no scientific decisions. However, for all these purposes—and this is an important point—there is a built-in requirement to consult with the advisory bodies just as now; a procedure which has worked well. Where the Minister of Agriculture, Fisheries and Food is the licensing authority, the Bill makes provision for consultation with the Secretary of State, and the NCC, and, as I indicated in the Second Reading debate, the final licensing decisions should represent the balanced view of all the relevant interests.

    There is no question of anybody being judge and jury. The NCC is there to give all advice. That is their statutory obligation. I hope, bearing in mind these points, and considering the useful debate that we have had, that the noble Lord, Lord Donaldson of Kingsbridge, will appreciate that we have thought the matter through and have done the best to satisfy the conservation interests while balancing it with the procedure which is now happening.

    I take it that when my noble friend mentioned the Ministry of Agriculture he included the Secretary of State for Scotland, because that is the authority in Scotland.

    I must inform the noble Baroness of one fact about which she seems unaware: she has to consult the NCC anyway if she wants to do any works and claim grant aid if the land is an SSSI. Anybody in that position is already in touch. However, that is a detail.

    I shall read what the noble Earl has said very carefully. He told me a number of things of which I was not aware. I am not absolutely certain where it leaves me. I do not wish to retreat totally. I have the feeling that when we come to Amendments Nos. 309 and 313, pressing those might have the effect I am trying to produce. I am not sure yet and I must think about it. For the moment, and until the next stage —giving us time to read what the noble Earl said—I am happy to withdraw the amendment.

    Amendment, by leave, withdrawn.

    5.10 p.m.

    moved Amendment No. 284:

    Page 15, line 8, at end insert (" in accordance with regulations made by the Secretary of State ").

    The noble Lord said: In moving my amendment could it be coupled with Amendments 290, 294 and 321, for which the first three amendments are in fact paving amendments? The first three say in various places on this page that the words,

    in accordance with regulations made by the Secretary of State ",

    should be inserted. Then they are followed up in Amendment 321, which says:

    " Regulations made under this section shall make provision for an appeal against refusal of a grant of a licence by the appropriate authority ".

    There are very few things in this country where a seeming injustice may have been brought about by a decision where an appeal cannot be made to some authority or other. It is for that reason that my noble friends and I have put down this amendment. I beg to move.

    I am grateful to my noble friend for speaking to this amendment and perhaps I might also speak to the other three amendments, Nos. 290, 294 and 321. These four related amendments would effectively oblige the Secretary of State to make regulations covering the procedure for the granting of licences for all the purposes listed in Clause 15 of the Bill.

    It has never been the Government's intention to make licensing the subject of regulations. I appreciate the reasons why my noble friends have suggested this, but we believe it would be impracticable if not impossible for regulations to be made to cover every individual aspect of licensing. Each application will be different and the Government will have to consider, among other things, the applicant, the species and location, the time and proposed method of executing the activities to be licensed. The flexibility of the whole licensing system, which is illustrated by the list of aspects to consider, would be severely circumscribed by the rigidity of regulations to which licensing authorities would have to adhere. This does not mean that we have any intention of riding roughshod over any discipline or of acting improperly. I can assure my noble friends that we shall do our utmost to ensure that fair play and equal treatment will be given to all under the licensing procedures and that all application will be decided on the same basic criteria.

    Perhaps I might speak for a moment to Amendment No. 321 regarding the procedure for appeal against refusal to grant a licence. To do this would open the floodgates to a demand for appeals procedure against the issuing of licences for all manner of purposes. As in all administrative processes, the first round of appeal is to the licensing authority to reconsider its decision. This recourse has been open in the past and there have been several instances when they have been considered two or even three times. There are also cases when an initial decision has been reversed in the light of fresh information having been presented. Thereafter the powers of appeal, as now, lead a disappointed applicant to his Member of Parliament or to the Parliamentary Commissioner for Administration. The Government are satisfied that the system already in existence gives adequate safeguards to applicants for licences and ensures that there is recourse for those who are refused licences. I am equally convinced that there is nothing to be gained from enshrining this in the present legislation. I very much hope that, with these assurances, my noble friends may feel able to withdraw their amendment.

    As the noble Earl has said, I think quite rightly, that he does not like regulations but has indicated that he will talk about possible guidelines, would it be possible to publish those guidelines or let it be known what the criteria are—I think "criteria" was the word used. I am not quite sure of the difference between criteria and guidelines, but they are probably the same. Could the criteria be published?—because if they were I think it could save a lot of time for the licensing authorities by cutting down the number of frivolous applications for licenses and it would also stop the application for licences by people who have no hope of getting them.

    I thank my noble friend for that intervention. I did actually refer to "aspects to consider" illustrated in this section; but I think that the Nature Conservancy Council might well wish to consider the idea of publishing certain of the basic criteria; and perhaps we might leave that to them to consider.

    I am grateful to my noble friend Lord Avon for what he has said, and particularly with regard to a re-application to a licensing authority to review its decision. In the circumstances I see that it is a little difficult for a Minister himself to be the court of appeal for his own department. In view of what has been said on behalf of the Government—and I am grateful for the explanation of the position—I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 285 to 290 not moved.]

    5.16 p.m.

    Page 15, line 26, at end insert—

    (" ( ) The appropriate authority shall issue a licence only if the person applying for a licence satisfies them that the purpose of the issue of the licence cannot be achieved otherwise than by the issue of the licence.").

    The noble Lord said: This amendment is intended to strengthen the conditions under which licences would be issued for certain purposes. I want to refer first of all to the EEC Directive on the Conservation of Wild Birds. Article 9 allows for derogations from the provisions of Articles 5, 6, 7 and 8, which deal with the protection of birds—

    "where there is no other satisfactory solution for the following reasons "—

    and then the reasons for which they need to be satisfied that there is "no other satisfactory solution" but the granting of a licence relate to the interests of public health and safety, the interests of air safety, damage to crops and so forth. Those are the ones one would expect where satisfaction should be given that there is "no other satisfactory solution ".

    Similarly, the Council of Europe Convention on the Conservation of European Wildlife and Natural Habitats has an article in almost identical words. Article 9 of that convention allows for exceptions to be made to the provisions of Articles 4, 5, 6 and 7 which provide protection,

    " provided there is no other satisfactory solution "—

    and again for purposes under the convention similar to those specified for the EEC directive. We do not have in this Bill so far words of that definite kind,

    " where there is no other satisfactory solution ".

    What we do have is something a little milder than that, and, of course, we have the assurances of the noble Lord, Lord Bellwin, on what would be the Government's policy in the granting of licences. However, it would be better to include something in the Bill which is a little stronger, rather than to rely entirely on a description of how the licences would be granted. It has been suggested to me that an alternative to this amendment—a little weaker but more in line with what the noble Lord, Lord Bellwin, said—would be as follows:

    " Page 15, after subsection (2) insert the following new clause—
    ' Before issuing an licence in respect of subsections (1)(k) and (1)(l) or subsections (2)(g) and (2)(h), the appropriate authority shall take account of the availability of alternative methods of control '.".

    That might suit the Government better than the EEC directive and the Council of Europe convention. However, I hope that they will opt for the stronger alternative. But I keep the second, weaker version in reserve, in case I have to fall back on it at some sub-sequent stage.

    All in all, the exceptions, the licences, the conditions of granting licences and the purposes for which licences are to be granted, worry me a great deal because, very often, these exceptions weaken the whole structure and purpose of legislation. I have seen so much of it in the statute law in my time in the hands of slack administration, or indulgence which was never intended at the time of passing the statute law, and I have seen the weakening of what was the original intention of providing some definite protection. That is why I feel it is quite reasonable to be pressing all the time against the possibility that licences, and the conditions for the granting of licences, may err on the side of generosity to those who seek to have them.

    This amendment has a perfectly reasonable pedigree. After all, it is in line with the EEC directive, to which the Government should pay some regard. It is also in line with the Convention of the Council of Europe, to which the Government should also pay some regard. The two together add up to support for this amendment, and I sincerely hope that the noble Earl will have something favourable to say about it. I beg to move.

    I do not suppose the noble Lord, Lord Houghton, will be surprised if I say that I am not very keen about this amendment. It would, as he knows, cause considerable delay and, by the time we received our licence—if we did—the damage would be done. I would just draw the Committee's attention to the words:

    " the licence cannot be achieved otherwise ".
    It is not very often that I feel sorry for civil servants, but I would feel very sorry for them if they were trying to interpret that phrase, particularly if they felt that the noble Lord, Lord Houghton, was on one shoulder and I was on the other. It is asking a lot of them, although I know that we do ask a lot of them. But I really cannot support this amendment.

    I do not feel terribly strongly about this amendment. I am entirely in agreement with what is in my noble friend's mind. In other words, if in considering the protection of crops against any kind of reserved animal there is a better way than giving permission to shoot it, then clearly a licence should not be given. That is common sense. I should have thought that the licensor would observe this anyway, but I should like to hear what the Government have to say.

    I agree with the noble Lord, Lord Donaldson. One is entirely sympathetic to the amendment. My main argument would be that it is rather unnecessary. I should like to open by saying that, of course, we understand the requirements of the European Community's directive and, indeed, have to comply with it and will do so. This amendment seeks to impose the specific requirement that an applicant for a licence shall satisfy the licence issuing authority of the need for its issue. But if we think of this deeply, the amendment is unnecessary as the licence-issuing authority responsible will not issue a licence if it is not required. In any case, it would be totally wrong to place the onus on the applicant who would not necessarily be aware of other alternative methods. The licence-issuing authority will have this information, and will advise the applicant on the use of these other methods before issuing the licence. I hope that that rather brief explanation may satisfy the noble Lord.

    I am afraid that the noble Earl has not satisfied me. I was delighted to hear his reiteration of the Government's support for the EEC directive, and the fact that they will comply with it—as, indeed, under international law they have to do. He said that a licensing authority would not issue a licence if it was not required, but the EEC directive states that if there is no other satisfactory solution a licence should not be issued.

    This may be a semantic point, but it seems to me that it would answer some of the worries that have been expressed about the licensing provisions in this Bill, if the words of the EEC directive—and the Government have been quite happy to import them into other clauses of the Bill, where it suited those interested in protecting agriculture and other things; and we made no complaint about that at the time—were imported into this part of the Bill. The words in Article 9 are that member States may derogate from the provisions of the directive where there is no other satisfactory solution. I should have thought that if those words appeared in the Bill, we could all be absolutely assured that we would stick to the EEC directive.

    Yes, I take the noble Lord's point. But I honestly think that the licence-issuing authority will have the information and will therefore advise the applicant on the use of other methods. I am rather back to front with the noble Lord on this amendment, but I will find out why we have not used the exact words and will have another look at it.

    That would be helpful, because the noble Earl will find that a number of words from Article 9 have been incorporated into the Bill and, by the nature of things, it will arouse some suspicion if three or four words which look good from the conservationists' point of view are left out of the Bill, when all the words which look bad, about preventing damage to crops and so on, are put in. So it would be helpful if the Government would look at the point again, and I am grateful to the noble Earl for saying that he will do so.

    I am always upset when the noble Lord, Lord Stanley of Alderley, is not on my side. That weakens my position greatly. My reply to the noble Earl is that I imagine that those who have crops, livestock, or other property, which may be exposed to the depredations of species that might otherwise have the protection of the Bill, will no doubt ascertain from the appropriate authorities beforehand what kind of situation will arise if their expected enemies fly over or settle on their land in large flocks and begin to gobble up the winter-sown wheat and so on. I do not think that farmers and others will apply for licences out of the blue, if some unexpected catastrophe or threat befalls them. On the whole, they will know what is likely to come their way.

    However, I shall not delay the Committee any more. I shall be interested to know in due course why the words chosen were not those of either the EEC directive or the Council of Europe convention. Where we are dealing in words, we naturally like to rely on words which are of general application in a directive of this kind. It may be that there are alternatives to the words used in conventions, but it is better to stick to them if they mean sense to us and, in this case, the words of the directive do. However, I beg leave to withdraw the amendment and, probably, will hear a little more about this at a later stage of the Bill.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 292 to 295 not moved.]

    5.29 p.m.

    moved Amendment No. 296:

    Page 15, line 31, leave out paragraph (a) and insert ("(a) shall be specifie; ").

    The noble Lord said: I referred earlier to the fact that I should be moving some amendments on the specificity, as opposed to the generality, of licences and, with the permission of the Committee, I should like to discuss Amendments Nos. 295, 296, 297, 299, 300, 301 and 306, all of which apply to the same point.

    I did not hear the consequential numbers. However, the noble Lord mentioned Amendment No. 295, which has been withdrawn.

    I am at fault. I meant to mention Amendment No. 296, which has not been withdrawn. I apologise to the Committee. That is the first amendment which I am pinning this group on to. Noble Lords know the general point which I am trying to make but I want to go into it in some detail. The licensing provisions contained in the Bill are wide. They differ in a number of respects from the arrangements contained in the existing Protection of Birds Acts with which, on the whole, we have been fairly satisfied. To begin with, the Bill enables licences to be granted to kill or take any wild bird in order to prevent serious damage to crops, property, et cetera. This will also apply to creatures otherwise protected in Clauses 9 to 12. This is an innovation of a derogatory kind from the point of view of the protected animal which we have got to look at very carefully.

    My reaction was to turn to the existing arrangements under the Protection of Birds Acts to see how we have coped with the problem, if it existed, in the past. I have found that Section 4(2)(a) of the old Act provides a defence for persons suffering serious damage or wishing to prevent serious damage to crops, property and so forth to take action against protected birds other than those in Schedule I, which are the rare species. However, anybody who uses the defence provided in this section must, if challenged, be prepared to show in a court of law that his action was necessary. In other words, a farmer or other person suffering damage must think before he reaches for his gun, but not so long as to see his crop disappear. On the whole, this has been a reasonable, self-policing system. The new proposals, though they are not yet perfect, provide a framework upon which I hope and think we can build to produce a fair, workable and reasonable system.

    One might have thought that the organisation which I have had reason to quote several times in these debates, the Royal Society for the Protection of Birds, would be hostile in their response to this principle of new licensing proposals. That is not the case. They tell me that in their response to the Government's consultations they supported a licensing system. They said that they had for a long time suggested, indeed promoted the idea of a licensing system to cater for species causing serious damage. However, they qualified their comments with two important provisos, with which I agree.

    The first is that licences should be granted on an individual basis, and only on an individual basis, each case being judged on its merits and clearly in relation to the seriousness and extent of the damage sustained or anticipated. The second is that the administration of any licensing system should be carried out at least on the direct advice of the Nature Conservancy Council. We have already discussed whether the Nature Conservancy Council should issue the licence. The noble Earl has said that he cannot arrange that. But at least it must be on their advice. We need to be very careful about the two provisos.

    The point of the Bill is to protect wildlife. We must keep a reasonable balance between the commercial man and wildlife itself. In the alleviation of damage, or potential damage to crops or property one must certainly consider the wise and judicious use of deterrents, or wise husbandry, to prevent damage. Allowing somebody to shoot the offending protected species is only a very small part of the answer, and a last resort answer at that. In a sense, this emphasises the last amendment which was moved by the noble Lord, Lord Houghton of Sowerby. It is most important that the licensing-administering body should have advice available on the deterrents to prevent damage. Only if these have been tried and have failed and the likelihood of serious damage has been demonstrated should a licence to kill birds be issued.

    This sounds much more difficult than it is. Most farmers always do this first before they go for a licence —and if they do not they ought to. So they ought to be able to telephone the regional office, or whoever gives the licence, and say, "I have done this and I have done that, but I cannot get rid of them. I now want a licence to use one of the derogated methods ". I cannot see any problem about this. I think that the noble Earl will say that this is the position. If so, I shall be relieved.

    That being so, let me repeat what I said earlier: I see no justification whatever for the issue of general licences. Clause 15(4) states that a licence may be, to any degree, general or specific and that it may be granted either to all persons, to persons of a class or to a particular person. My amendments say, first, that it must be specific and, secondly, that it must be to a person. There are a number of consequentials. However, that is the important point.

    Under the Bill as it stands, the licensing authority would have the power to grant a licence to all of the farmers in Southern England to take action against brent geese—and furthermore, indefinitely. This is exactly the kind of thing which would save trouble for farmers but which from the conservation point of view is not acceptable. It is absolutely reasonable that if there were a plague of brent geese in a certain crop area a special licence should be given to one, two, three or half a dozen people. That is quite different from a general licence being given to kill brent geese north of the Humber. It is a very extreme result and one which we must oppose.

    To give an example, a general licence to allow herons to be destroyed at fish farms would remove from fish farmers the onus to design their farms in such a way as to minimise heron damage. There is a great deal of information on how to do this. If you were foolish enough to grant a general licence, nobody would then take the trouble to do that. A general licence would be very little different from placing the bird in Part II of Schedule 2. Those are the species which may be killed or taken at any time—the pest list for the said area. It could be worse, for at least those species are stated clearly in the Bill. If general licences were granted, how would enforcement authorities or the general public know if the bird was the subject of a general licence, or what were the conditions of such a licence?

    I do not want to flog the case. What I am driving at is fairly clear. However, I cannot understand how with such a loose arrangement, the Government believe that they can fulfil their obligations under Article 9 of the EEC directive. My amendments would allow the issue of licences where damage has occurred or is likely to occur. Nobody can object to that. General licences would not be issued and the conditions laid down in Article 9 of the directive would be adequately covered. I have said sufficient to show what is in our minds. There may be a middle course between my objections and what is contained in the Bill. I shall be glad to hear whether the noble Earl has anything to add. I beg to move.

    5.40 p.m.

    I am surprised at what the noble Lord, Lord Donaldson of Kingsbridge, has said. This is a question of principle. The trouble with the noble Lord is that he has no trust whatsoever in anybody. These licences will be granted by a licensing authority. I happen to have enough faith to think that licences will be granted only in reasonable cases. There are going to be cases when the licence will have to be general. May I quote an extreme example, as did the noble Lord. There would be need for a general licence in Anglesey against greylag geese.

    I will make only one other point because I hope other noble Lords will support me on this. The noble Lord said "Indefinitely granted" but I do not see that. The licence could be granted for a day or a week or two months, but I do ask the noble Lord, Lord Donaldson of Kingsbridge, to have a little more trust. I am sure we should then all get on much better.

    I do not see how we could get on better. I do not trust people whose commercial interests are affected. I have never found them to be trustworthy in any way. They look after themselves and not the other man. This is not the Christian doctrine but it is adopted by everybody I know, Christians or otherwise. I would even say socialists or otherwise and we may as well expect no more. Really, the whole of this clause shows lack of trust; it is derogating certain things to which Clauses 1 to 8 will not apply. One might as well say, There is no point in putting this down; let the licensing people do as they think fit ". The greylag goose in Anglesey is a very good example. I do not believe for one moment that if you wish to protect Angelsey crops at a certain period from the greylag goose it is necessary to do it for the whole of Anglesey. I do not know how many farms there are in Anglesey but it cannot be a large number. I know the area fairly well and I should have thought it would have been possible to have individual licences for a fortnight when the crop was ripe, or whatever might be the appropriate period, and that is exactly what my amendments would make possible.

    I cannot follow the noble Lord, Lord Donaldson, at all in his argument because if we read the whole of subsection (4), and in particular paragraphs (c), (d) and (e), we find that it seems to take account of everything that he is concerned about. The licence, although general, could have specific conditions attached to it. It could be modified or revoked at any time by the appropriate authority and it could be valid for a limited period of time, so what is he concerned about?

    The noble Lord, Lord Stanley of Alderley, and others have suggested that there is not much to worry about and that we all ought to trust each other. Of course, we do, but nevertheless, having done that we are still concerned about the intentions of the Government and others if this power to grant general licences is retained in the Bill. I think my noble friend dealt effectively with the one example which we have been given so far of the need for general licences; the other example which the NFU have actually given their own members is that under the Bill they are assured that there would be a general licence issued to everybody in South-East England to kill brent geese whenever they need to. That has been published by the NFU and it is apparently an assurance which they have been given. That is a general licence to cover all brent geese anywhere in southern England at any time they want to kill them. That is an appalling state of affairs. That is why there is some suspicion, worry and doubt about this provision in the Bill.

    We had a long discussion in this Committee about brent geese and whether they needed the protection which they are given under the Bill. The amendment which suggested that they did not was withdrawn, with Government support against it, and now this provision simply makes the whole of that discussion worthless. What was the point of it if the NFU have already been guaranteed a general licence to kill brent geese in South-East England? That is why we are worried about the provision.

    But if the Nature Conservancy Council says to the Secretary of State, "The farmers are disobeying the conditions of the general licence" surely the Secretary of State would merely revoke the licence.

    I think it really is a case of which way round we play this particular one. The noble Lord mentioned herons and if I may take that as a specific point of the policy on licences for each species, it is the intention that it will be worked out with the NCC, with MAFF and with my department and for herons it is expected that licences will be granted to individual fish farmers and only when other types of deterrent have already failed.

    To answer the other point put by the noble Lord opposite there has been absolutely no guarantee to the NFU about brent geese. Licences for brent geese are under discussion and if they are considered it would probably only be to individual farmers who are affected and it would not be an umbrella licence.

    The idea behind this paragraph is flexibility, as noble Lords know perfectly well and the amendment tabled would make specific licences necessary in cases where the Government think that it is not justified. I think the great safeguard is the duty which is there to report annually to the Commission on the derogations authorised under Article 9 of the British birds directive, which would mean that the Government would have to justify the licences issued. Equally I should like to ask the noble Lord who proposed the amendment to give some idea of how we get round the general licences which we arc thinking of. For instance, if there were some pest birds in Schedule 2, Part II, and one wanted to cover them in a particular county, or something of that nature, also gulls' eggs, which have been mentioned, and fruit farmers in connection with which bullfinches have come up in our discussions on other occasions—how are we going to cover these if we cannot use a general licence? This is why the Government do not want to be tied down to the word "specific".

    I do not myself see the difficulty. If we take fruit farming, for example, it is entirely in areas; it is usually a matter of under 30 farmers over a very large area, not all of whom grow the same fruit. I should have thought the bullfinch was admirably suited to a specific licence to be issued to a specific farmer on a specific farm. I think they would want to get it extremely quickly, and that is one of the reasons why I am sorry that my suggestion about the regional offices of the Nature Conservancy Council has not been accepted. I do not see a problem here at all. I do not understand why the noble Earl, having said that he would be specific in his opinion at this stage in regard to brent geese in the South of England and would not want to issue a general licence, should want to be able to issue a general licence in other cases. I do not believe that is necessary.

    The discussion so far has concentrated entirely on birds, but if I am not mistaken we are also concerned with other animals, including those which are in Schedule 5. We know that the red squirrel has been added to Schedule 5 and the schedule already contains seriously threatened mammals and other vertebrates and invertebrates. May I seek assurances, for the record, that the licensing system will be equally particular where it is applied to non-bird species?

    Yes, if the noble Earl considers a general licence to be particular, it will.

    I do not know whether the noble Earl, Lord Cranbrook, is satisfied with that but it seems to me to be the exact opposite to the assurance he was seeking. Of course, that is the problem. If we have this particular form of words in the Bill we are obviously going to use it and the examples given by the Government all seem to me to be perfectly good places where a specific licence could be issued. In the case of a fruit farm, most people who are growing soft fruit which is liable to suffer damage from bullfinches will know in advance when there is a risk to the fruit. Farmers are not stupid in that way and they will be able to apply in plenty of time. The Bill already allows one to apply for a licence if damage is anticipated. It does not have to have occurred or to be occurring; all that one has to show is that it is likely to happen in the future.

    I do not think that the Government, in sticking to this extraordinarily general and unqualified form of words, can seriously put forward the case that they are sticking to the EEC directive. In Article 9(2) the directive says that the derogations (which is what this licensing procedure is) must specify the conditions of risk and the circumstances of time and place under which such derogations may be granted. It semed to me that the noble Lord, Lord Bellwin, to some extent recognised this in his Second Reading speech when he said that it was misleading to think of a general licence allowing anybody to kill anything of a certain species in a certain area, which was certainly how the NFU had viewed the possibility of getting licences to kill brent geese. The noble Earl has reassured us on that. The noble Lord, Lord Bellwin, at Second Reading, said:
    " The licence will be limited to that group of people and will be specific as to the species to be killed, the period of time, the area of the country and the purpose and method of killing for which it is valid ".—[Official Report, 16/12/80; col. 984]
    It seems to me that in that there may be the possibility of a compromise. If the noble Earl is saying that that is what a general licence means, would it be possible to put Lord Bellwin's words in the Bill? Then we would not be worried about the blanket licences which run for any period of time, apply to any number of people for any reason whatsoever, for anybody to kill anything they want to kill.

    I was getting perturbed that the specific licence was almost reaching my general licence. Obviously we want to retain the word "general". I take the point made by the other side. I do not think I can say that I am going to consider it again, but I shall read in detail what has been said and see if we can get a little closer, because we are very close on this.

    I would not like the noble Earl to read what I said, but if he could read what his noble friend Lord Bellwin said at Second Reading and see if those sentiments could be incorporated into this clause in qualifying the word "general", I think that would go a long way to meeting the worries that have been expressed in this connection.

    With that particular assurance which I think has been granted, that at least the noble Earl will look at what his colleague said, it seems to me that if those words could be added to the definition of "general" we should be fully satisfied. In any case, I am happy to withdraw the amendment until such time as we have an opportunity to hear what the noble Earl's conclusions are.

    Amendment, by leave, withdrawn.

    I have to point out that if Amendment No. 297 is agreed to, I cannot call Amendment No. 298.

    [ Amendments Nos. 297 to 302 not moved.]

    I have to point out that if Amendment No. 303 is agreed to, I cannot call Amendments Nos. 304 or 305.

    5.53 p.m.

    The noble Earl said: It seems to me rather peculiar that a charge is going to be required by the appropriate licensing authority. This amendment is a probing amendment; I should like the Government to explain their view on this matter a little further. I beg to move.

    It is the Government's policy to ensure that they are not inhibited by law from making charges for issue which place additional costs on all taxpayers for the benefit of a few where such charges are appropriate. This provision does not itself mean that licence fees will necessarily be levied but it is considered essential that the Government should not be restricted in their ability to do so.

    This is rather a brief answer, as I was expecting to have a rather longer discussion on this subject. My noble friend said that this was a probing amendment and I am not quite sure in which direction he wishes to probe. If I have not given a sufficient answer perhaps he could explain further.

    If the noble Earl wants further discussion far be it for me to deny him. I thought the opposite was the general direction required. I would only say that it is the normal thing in the social services or anything of that kind—agriculture, for instance—that if you are going to ask for a grant you should pay the necessary expense of getting it, and I see no objection to it at all.

    What I was trying to get from the Government was whether they have any proposals at the moment for making a charge, and if so how much? If they make the charge, will this delay the granting of a licence?—because as we discussed earlier, this could be a critical question of timing for the farmer.

    I thank my noble friend for clarifying the point. This matter is under discussion at the moment. I will make sure his point about timing is fed into the discussion if it is not already there.

    I am grateful to my noble friend for that. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 304 not moved.]

    Page 15, line 41, at end insert—

    (" Provided that no such charge shall be made in respect of the grant of a licence—
  • (a) for the purpose of preserving public health or public or air safety;
  • (b) for the purpose of preventing the spread of disease; or
  • (c) for the purpose of preventing serious damage to livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.").
  • The noble Lord said: My noble friends and I who have put this amendment down really think it is a bit much that when people are asking for and getting a licence for the specific purposes under ( a), ( b) and ( c), they should then have to pay for the licence. Are we honestly saying that if a fish farmer is plagued with herons and gets a licence he has got to pay for getting rid of half a dozen herons? Are we honestly saying that if a fruit farmer is bedevilled by bullfinches he should equally have to pay? I really think those concerned with this Bill are going to have quite enough time and trouble understanding the Bill, a point made earlier on Second Reading by my noble friend Lord Margadale. I think it is outrageous that they should have to pay for a licence. We all of us as taxpayers pay for having these various people working in the Ministry of Agriculture and the Ministry of the Environment so that they can do just this sort of thing. I really think it is too much that private individuals should have to pay for this type of thing. I beg to move.

    I do not want to get involved in this because it is between two Members on the same side of the Committee. I would only like to say that if something costs money to do and is for your benefit there is absolutely no reason why you should not pay for it.

    Is it not for the benefit of the consumer, because the farmer is producing crops and if those crops are under attack it means the price of food might go up.

    If he does not get a licence, he will not be allowed to protect them under this Bill.

    I hope my noble friends will be satisfied with the same answer as I gave to the previous amendment. This matter is at the moment under discussion. I have been reading the documents which have so far been produced, and I have not seen a suggestion on the lines of my noble friend's. I will make sure that these suggestions are brought to the attention of the appropriate people and undertake that we do look at this.

    With that assurance, I shall be glad to beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    If Amendment No. 306 is agreed to, I shall not be able to call Amendment No. 307.

    [ Amendment No. 306 not moved.]

    Page 16, leave out lines 22 and 23.

    The noble Lord said: This is only to say that I do not believe that if a licence is given to a person it should automatically be given to other persons at the same time. I am being rather specific about this. With those few words I beg to move.

    We have already spoken to this subject in some detail. This amendment relates to, and seeks to delete, one of the aspects designed to achieve flexibility in the system—the proposal that a licence may be issued to enable a person to authorise others to undertake the activity specified in the licence. I can assure your Lordships that we do not intend to use this power to do some of the more extreme things which have been bandied about. As I said, it is designed to give an extra flexibility to the system. If I may give an example, we might wish to make an arrangement whereby the British Trust for Ornithology could authorise its qualified members to ring birds. The alternative to this would be a welter of individual applications, with all the attendant bureaucracy. That is not, of course, what we want and, with that in mind, I hope that I have said enough to persuade my noble friends that the Government really would rather like to keep this in the Bill.

    I am grateful for the support of the noble Lord, Lord Donaldson of Kingsbridge. I think that it was he who was supporting me and I shall naturally look forward for a quid pro quo later in the Bill. However, I am very glad to accept what my noble friend has said and that the Government have a strong view upon this matter. Therefore, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    The next amendment is No. 308. I must draw to the Committees' attention that if Amendment No. 308 is agreed to I shall not be able to call Amendments Nos. 309, 312, 313 or 314.

    [ Amendment No. 308 not moved.]

    moved Amendment No. 309:

    Page 16, line 25, leave out from ("under") to ("(1)" in line 26 and insert ("paragraphs (a) to (i), (k) and (l) and under paragraphs (g) or (h) of subsection (2)").

    The noble Lord said: I beg to move Amendment No. 309. With this amendment, I should like to speak to Amendments Nos. 312 and 313, and also Amendment No. 315, because they all go together. The purpose of these amendments is try to simplify the definition of "the appropriate authority" very much along the lines the noble Lord, Lord Chelwood, suggested when we had an earlier debate about making the Nature Conservancy Council the appropriate authority throughout these licensing provisions.

    This series of amendments does not go that far, but what it does do is to seek to make the Secretary of State for the Environment, or, in Scotland, the Secretary of State for Scotland, the licensing authority with advice from whichever of the advisory bodies the Secretary of State sees fit to consult, or from the Nature Conservancy Council. That is the wording

    in Subsection (8)( a) on page 16 of the Bill. It removes the licensing power from the Ministry of Agriculture, Fisheries and Food.

    It seems to us that, even if the Government are not prepared to go as far as making the Nature Conservancy Council the licensing authority for all purposes under the Bill, there are some very strong arguments in favour of some rationalisation and simplification as to which is actually the appropriate authority; and that, as I think more than one noble Lord opposite said in our previous debate, the Secretary of State for the Environment would by and large be seen as holding the ring in a fairly fair way between the competing interests of agriculture and conservation—and there are, of course, competing interests here. There is the economic interest of the farming community and the interest of those who wish to protect very rare species, whether birds or other things listed in the Bill, from being killed. Those who wish to see them protected wish to see them protected even if they do cause some damage, and those who are farming wish to see them killed even if they are very rare. There is a serious conflict of interest which I do not think any of us ought to hide or be ashamed of. It is a perfectly natural and respectable conflict of interest. But, given that, it does seem to some people involved in the conflict a little unfair that, as it were, the main protagonist for one side should be in the business of issuing licences for these very rare and protected species to be killed if they are causing the sort of damage set out in subsection (2)( h) on page 15.

    The Secretary of State for the Environment, with advice from various bodies, as I understand it, has always provided a perfectly satisfactory service as regards issuing licences in the past. Whether we tighten up the wording of the general licences or not—whatever we decide about that—it would nevertheless be the case that under this Bill there would be far more licences issued for far more purposes than has been the case in the past. I would suggest to the Government that we run the risk of opening up an enormous area of conflict and controversy with the Bill, unless the people making the decisions arc seen to be reasonably fair and impartial to both sides of the conflict.

    That is not the case under the Bill at present. The Ministry of Agriculture quite rightly and properly is seen a acting entirely in defence of agricultural interests. I am very glad, as a farmer, that they do that, and I would not wish them to do anything else. But, in those circumstances, I do not think that it is fair to them or to anyone else to see them issuing licences for the destruction of very rare birds, simply on their own say-so, as is currently the case under subsection (8)( d). Therefore, I hope that these amendments will be accepted by the Government. I beg to move.

    I do not suppose that the noble Lord Lord Melchett will be surprised if I say that I do not think that the amendment is a very good idea. In my view, the Ministry of Agriculture are the best people to look at this problem with regard to pests. I think that if—

    I interrupt the noble Lord to say that we are not talking about pests: we are talking about the most endangered and rarest birds and animals that we have in this country.

    The point is taken, but on these particular occasions they will only be able to be destroyed if they cause a nuisance. I think that the noble Lord has taken that point. In my view, the Ministry of Agriculture are the best people to deal with this matter. If it is given to the Secretary of State and the Department of the Environment, it must be remembered that they are not really involved with crops and I can foresee that the first thing that they would have to do is to rush round from Marsham Street to Horseferry Road to find out what was happening. I do not think that that is a particularly good idea. It takes time and adds bureaucracy.

    I do not want to keep jumping up and interrupting the noble Lord, but is he implying something which I find very worrying and an example of the lack of even-handedness, if I may say so, of the noble Lord's approach; namely, that the Minister of Agriculture will not consult the Department of the Environment or the Nature Conservancy Council? Whoever does the consulting, the same distance has to be travelled.

    The noble Lord is trying to tie me up and he is very welcome to do so. Let us face it, the first people that they would go to is the Nature Conservancy Council and not necessarily the Secretary of State. I think that the Nature Conservancy Council must be the first people. Indeed, they are duty bound to consult them.

    They would do so. The noble Lord is interpreting me wrongly in thinking that if it were a rare animal they would not consult. It says "shall" consult. If there is a rare bird that is harming crops no responsible official of the Ministry of Agriculture is not going to consult the Nature Conservancy Council—of course, he will do so.

    I shall make my final point, which I am sure will annoy the noble Lord, Lord Melchett. Farmers know their Ministry of Agriculture office better than they do their Department of the Environment office. They are much more likely to go to the Ministry of Agriculture office. I am not saying that farmers would break the law, but I think that there might be a tendency, if they had to go off to their Department of the Environment office, not to ask. Furthermore, if a farmer goes to the Ministry of Agriculture—and we come down to a principle here and says, "I want a licence for this", I truly believe that the man there—whether it be an ADAS man or whoever—will say to him, "Look here do you really need to kill this bird? Do you realise that there are only 24 in the country?", and the farmer will listen. I am doubtful about him listening to the Department of the Environment. However, I shall not go on about that. I have been in trouble in this House previously over the Department of the Environment.

    I congratulate the noble Lord opposite for making what really is an excellent speech on a subject which I think we have been over once before, and for putting forward such novel views. I think that right at the beginning I must emphasise that the Government feel that it is entirely right and proper that the Ministry of Agriculture should have a responsibility for licensing which is connected with serious damage to crops.

    The Government have endeavoured to give the responsibilities for licensing to the Government departments best equipped to exercise them. That is our ploy. The Bill makes provisions, as I have said previously, for consultations between the Secretary of State, the Minister of Agriculture, Fisheries and Food, and the advisory bodies to be set up under Clause 21. As I indicated during the Second Reading debate, the final licensing decisions should represent the balanced view of all the relevant interests, and this will, I submit, meet the objectives of the noble Lord and the noble Baroness who have moved this amendment. I do not think that I can say any more without going over ground which I have already covered.

    I think that it is a slightly different point to want to have the Nature Conservancy Council as the licensing authority throughout the Bill and simply to want to transfer the responsibility under two of the paragraphs in subsection (8) from the Ministry of Agriculture to the Secretary of State for the Environment. It was an attempt to meet some of the noble Earl's objections to the earlier amendment.

    I am sorry, but I forgot to say anything about the NCC. As noble Lords know, we have given the NCC one factor on which to do their licensing. I understood from what my noble friend Lord Chelwood said that the NCC could not cope with the licensing of all this.

    That is exactly why I moved this series of amendments, which does not put any further burdens on the NCC, but which asks the DoE to do this, having listened the MAFF on the one hand and the NCC, or whatever advisory body it would be, on the other.

    A serious point arises here. I do not think that the Government are being fair, and they are certainly not being seen to be fair. The NFU and the farmers may be very happy with the proposals that are contained in this clause; indeed, they are. In fact, they say that they can accept the Bill to the extent that we have debated it so far because of the new licensing system introduced in the Bill. The NFU goes on to say:
    " The new system allows the Ministry of Agriculture to grant licences which could override many of the prohibitive measures in the Bill".
    In fact, it could probably override almost all of them. Anyhow, the NFU is being modest about this and says that the new system could simply override many of them. It goes on:
    " The licences may be general or specific, as deemed appropriate ".
    It goes on to give examples.
    " A farmer could therefore be given a licence to use poisoned baits or any other prohibited methods, provided that he could put a case to the Ministry (that is, the MAFF) proving his need to use such a method. Equally, any farmer could seek a licence to kill or control any of the protected species, provided that he could prove to the Ministry (that is, the MAFF) that the birds or mammals in question were, or were about to be, a pest in his particular locality ".
    The NFU publication goes on to say:
    " If necessary, the licences can be issued to all farmers within a certain region ",
    which I have mentioned before.
    " As an example, it is anticipated that a general licence will be given to all farmers in the south-eastern counties to control brent geese ".
    It is on the basis of statements of that sort and the feeling that has been around since the consultation on this Bill began that there has been a good deal of giving of nods and winks by the MAFF to certain people who are interested in the Bill about what they will do once they get these licensing powers, that the suspicions have been mainly aroused.

    The Government must hold themselves responsible for that. Quite clearly, they could meet this point by allowing someone who is evenhanded and not seen to be biased by either side, to have the power to grant the licences. That would be the Secretary of State for the Department of the Environment who, after all, is a Member of the Government and who is as bound by the advice of the MAFF as he is by the advice of any other Civil Service department. If the Government are not prepared to accept that, it seems to me that they are bound to be accused of unfairness and partiality, and I do not think that it would be a good thing to leave this in the Bill.

    I have said before that the Government are the Government and, therefore, speak for both the Department of the Environment and the Ministry of Agriculture. Therefore, we say that we speak with one voice. I have also said that the NCC is the advisory body for both the MAFF and the DoE. The Government will take advice from all three bodies at all times. I do not think that I can go further than that. We have great faith in our Ministry of Agriculture.

    6.14 p.m.

    On Question, Whether the said amendment (No. 309) shall be agreed to?

    Their Lordships divided: Contents, 56; Not-Contents, 85.


    Beaumont of Whitley, L.Goronwy-Roberts, L.
    Bernstein, L.Greenwood of Rossendale, L.
    Blease, L.Hale, L.
    Boston of Faversham, L.Hampton, L.
    Brockway, L.Houghton of Sowerby, L.
    Brooks of Tremorfa, L.Howie of Troon, L.
    Bruce of Donington, L.Jacques, L.
    Cledwyn of Penrhos, L.Jeger, B.
    Collison, L.Kilbracken, L.
    Cooper of Stockton Heath, L.Kilmarnock, L.
    David, B. [Teller.]Listowel, E.
    Davies of Leek, L.Llewelyn-Davies of Hastoe, B. [Teller]
    Diamond, L.
    Donaldson of Kingsbridge, L.Lloyd of Kilgerran, L.
    Donnet of Balgay, L.Lovell-Davis, L.
    Elwyn-Jones, L.McCarthy, L.
    Foot, L.McGregor of Durris, L.

    Melchett, L.Stedman, B.
    Milner of Leeds, L.Stone, L.
    Noel-Baker, L.Strabolgi, L.
    Ogmore, L.Taylor of Mansfield, L.
    Oram, L.Underhill, L.
    Peart, L.Wallace of Coslany, L.
    Phillips, B.Wells-Pestell, L.
    Ross of Marnock, L.White, B.
    Seear, B.Wigoder, L.
    Sefton of Garston, L.Winstanley, L.
    Segal, L.Wootton of Abinger, B.
    Shepherd, L.


    Airey of Abingdon, B.Lauderdale, E.
    Allerton, L.Long, V.
    Avon, E.Lonsdale, E.
    Balerno, L.Loudoun, C.
    Bathurst, E.Lyell, L.
    Bessborough, E.McFadzean, L.
    Caithness, E.Mancroft, L.
    Campbell of Croy, L.Margadale, L.
    Cathcart, E.Marley, L.
    Chorley, L.Massereene and Ferrard, V.
    Cockfield, L.Middleton, L.
    Colwyn, L.Mills, V.
    Cullen of Ashbourne, L.Monk Bretton, L.
    Dacre of Glanton, L.Mowbray and Stourton, L.
    Daventry, V.Newall, L.
    de Clifford, L.Northchurch, B.
    De La Warr, E.Nugent of Guildford, L.
    De L'Isle, V.Onslow, E.
    Denham, L. [Teller.]Orkney, E.
    Drumalbyn, L.Orr-Ewing, L.
    Dundee, E.St. Aldwyn, E.
    Ellenborough, L.Saint Oswald, L.
    Elliot of Harwood, B.Sandford, L.
    Ferrers, E.Sandys, L. [Teller.]
    Fortescue, E.Savile, L.
    Fraser of Kilmorack, L.Seebohm, L.
    Gainford, L.Skelmersdale, L.
    Gibson-Watt, L.Soames, L.
    Gisborough, L.Spens, L.
    Glenarthur, L.Stanley of Alderley, L.
    Grimston of Westbury, L.Stradbroke, E.
    Hailsham of Saint Marylebone, L.Strathclyde, L.
    Swansea, L.
    Halifax, E.Swinfen, L.
    Hanworth, V.Tanlaw, L.
    Home of the Hirsel, L.Terrington, L.
    Hornsby-Smith, B.Thurso, V.
    Inglewood, L.Trumpington, B.
    Ironside, L.Tryon, L.
    Keyes, L.Vickers, B.
    Killearn, L.Vivian, L.
    Kimberley, E.Wise, L.
    Kinloss, Ly.Yarborough, E.

    Resolved in the negative, and amendment disagreed to accordingly.

    [ Amendments Nos. 310 to 313 not moved.]

    6.22 p.m.

    moved Amendment No. 314:

    Page 16, line 37, after (" paragraph ") insert ("(jj,),").

    The noble Earl said: This is consequential. I beg to move.

    On Question, amendment agreed to.

    [ Amendments Nos. 315 to 318 not moved.]

    moved Amendment No. 319:

    Page 17, line 3, after (" subsection (1) ") insert (" ( jj),").

    The noble Earl said: This amendment also is consequential. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 320:

    Page 17, line 3, at end insert (" and subsection (2)(g) and (h)").

    The noble Lord said: This amendment aims at correcting what appears to be an anomaly as between action that has to be taken in relation to birds and action that has to be taken in relation to mammals. The subsection requires the Minister of Agriculture, Fisheries and Food and the Secretary of State to consult an advisory body with regard to the issue of licences for killing or taking birds

    " for the purpose of preventing the spread of disease; or for the purpose of preventing serious damage to crops "
    et cetera, but imposes no such requirement in relation to mammals.

    Therefore, I propose to add at the end of line 3 on page 17 the corresponding requirement to consult as regards mammals by adding "and subsection (2)( g) and ( h)" which relates to mammals. That is on page 15. I hope I have got the point across. There is this anomaly that for birds there has to be consultation, for mammals there has not. I wish to provide the same conditions for mammals as for birds. I beg to move.

    I am grateful to the noble Lord for raising this point. We are in sympathy with the intention of the amendment and accept that there should be a similar requirement relating to the licensing functions. We intend to place it with these departments, where the need is to consider action against it on Schedule 5 animals and Schedule 6 mammals. We will undertake to put down a Government amendment if the noble Lord would withdraw his amendment.

    I am grateful. I most willingly beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 321 not moved.]

    Clause 15, as amended, agreed to.

    After Clause 15, insert the following new clause:

    (" .—(1) It shall be the duty of the appropriate authority under section 15 to maintain registers containing:—

  • (a) the names and addresses of applicants to it for licences under that section; and
  • (b) copies of licences so issued.
  • (2) It shall be the duty of the Secretary of State to maintain registers containing the names and addresses of—

  • (a) applicants to him for registration under section 6(2) of this Part;
  • (b) persons currently so registered;
  • (c) details of applications for and registration of birds under section 7(1).
  • (3) It shall be the duty of the appropriate authority and the Secretary of State respectively in relation to the register maintained under subsections (1) and (2):—

  • (a) to secure that the registers are open to inspection by the public free of charge at all reasonable hours; and
  • (b) to afford members of the public reasonable facilities for obtaining from them on payment of reasonable charges, copies of entries in the relevant register.").
  • The noble Lord said: This is a thoroughly self-explanatory amendment. It is simply aimed to ensure that the licensing procedure—by which everybody is clearly setting such store, and which the noble Earl has already said would be to some extent open to public scrutiny because of the fact that the Government have to make an annual report to the EEC on their derogations from the directive—and the process of issuing licences is as open to public scrutiny as is possible, so that all of us can be sure, as licences are issued, that they are being issued for the purposes which Parliament has decided they should be.

    The amendment would ensure that licences and registrations would be available. This would allow voluntary organisations particularly to give information to the authorities if they needed to about people in the trade whom they know not to be of the sort of character in respect of which the Government would have wished to issue licences. The clause is based on Section 41 of the Control of Pollution Act 1974, which I hope means that the drafting is reasonably acceptable to the Government.

    There is one other argument I would advance in favour of having this sort of openness and the register. In the case of birds registered under Clause 7(1) of the Bill, a person buying a bird needs to know if it has been registered because otherwise the person would commit an offence when they purchased it. The sort of register I have suggested in this amendment would allow somebody to make sure that they did not inadvertently commit that sort of offence. I beg to move.

    On the whole there is only one objection we have to this, which I shall come to, but we feel that quite a lot of this is already covered in the Bill. There is a clear duty imposed on the Secretary of State by the registration provisions of Clause 6 in respect of taxidermists and Clause 7 in respect of registrable birds to keep the type of records required in the amendment. Subsection (1) would impose a statutory duty, but in practice records would of practical necessity be maintained. Subsection (3) would allow unrestricted access to the records, and this is the part we find objectionable.

    In particular I ought to mention the privacy of confidential information, a matter which your Lordships know is of increasing concern these days, but perhaps for the noble Lord I should refer to the high risk of information falling into the wrong hands. Many of the birds that will be required to be registered, particularly a number of the hawks, are rare and of value both in this country and abroad. We recognise that there would be little point in keeping records if they could not be used, and we intend to allow people to have information if they show reasonable cause. There is an apt analogy here in the access to vehicle registration records, for example. The department has gained considerable experience in these matters in operating the Endangered Species (Import and Export) Act 1976 and proposes to operate the new provisions in the same way. With that explanation of what we propose to do, I hope that the noble Lord will not feel so concerned about the need for his amendment and will withdraw it.

    I am not sure the Endangered Species (Import and Export) Act is the best analogy the Minister could have drawn on because my information is that there has been an enormous amount of disquiet about the standards and quality of the department's information in maintaining a register under that Act, and that on a number of occasions those concerned in the voluntary organisations have found it impossible to get information or have found the information muddled, inaccurate and out-of-date or have themselves corrected the department's information. I am sure the department has gained a great deal of experience from that measure and I know the department has been taking a number of steps recently to try to improve their performance, so there is recognition that matters need improving.

    I am rather worried when the noble Earl says that access wilt be given to those deemed suitable to have the information. One would like some assurance, in the Bill or some other way, about who exacly will be deemed suitable because I would not like the Government to decide once the measure has become law that the only people suitable to receive this information are, for example, Government servants or people who have signed the Official Secrets Act or officers of ADAS and the NFU and nobody else. I am not suggesting for a moment that the Government would make such a decision, but there seems to be a point here which, if it is not covered in the Bill, could be covered by a more specific assurance from the Government during the passage of the Bill. I will leave it there for now, and perhaps the Minister will write to me if he thinks there is any more he can say on the subject. I will consider between now and Report what he said and I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 16 agreed to.

    Clause 17 agreed to.

    Clause 18 [ Enforcement]:

    6.33 p.m.

    Page 17, line 39, at end insert—

    (" (e) in the case of an offence suspected of other than a person he reasonably suspects to be an authorised person, enter any land other than buildings for the purpose of exercising any power conferred on him under this Act.
    ( ) In subsection (1)(e) above, "land" has the meaning given in section 48(1) of this Act, but the power of entry given in that paragraph shall not be exercised in relation to land occupied by or under the management of:
  • (a) the Secretary of State responsible for Defence, or
  • (b) the United Kingdom Atomic Energy Authority, or
  • (c) the service authorities of a visiting force within the meaning of any of the provisions of Part I of the Visiting Forces Act 1952, or
  • (d) any headquarters or organisation designated for the purposes of the International Headquarters and Defence Organisations Act 1964.").
  • The noble Lord said: This is another detailed amendment which I will move briefly. Its purpose is to ensure that a police constable going on to land—but, I emphasise, not into buildings—where that police officer suspects offences are taking place will not be a trespasser so long as he goes on to the land without thinking that the person involved in committing the offence is an authorised person. Having said that, I hope the Committee will sympathise with me in trying to explain a somewhat convoluted amendment, for which I apologise.

    The restriction is quite restricted but it would provide a useful clarification of police powers. The Minister may say that a police officer would be so authorised anyway under Section 2 of the Game Act 1831, from which the words of the amendment are taken—so again I hope the drafting is all right—in which case I would be happy to consider the point, but it seems to me that that Act is more or less redundant, apart from this section of it, and that that Act of 1831 could be done away with if this provision were added to the Bill.

    We sympathise to a great extent with the amendment. There seems a need, for example, for a police constable who sees someone shooting at an obviously protected bird to be able to enter land to investigate. On the other hand, we are not happy about the wording of the amendment. I undertake to consider whether a Government amendment to achieve the aims encompassed by this amendment should be tabled at a later stage, and accordingly I invite the noble Lord to withdraw the amendment.

    I am delighted at that response and am grateful to the noble Lord. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Page 17, leave out lines 42 and 43 and insert—

    (" (a) an offence for which this Part provides that a person shall on conviction be liable to a special penalty has been committed ").

    The noble Lord said: Clause 18, which provides for the issue of search warrants to constables investigating offences involving the specially protected wild birds listed in Schedule 1, such offences attracting a special penalty, is very welcome. However, there appears to be a slight lack because there is no provision to grant such warrants for all offences which involve special penalties, and by definition such offences in this class must be regarded as serious. The purpose of the amendment is that powers to issue search warrants be extended to cover those.

    An important difficulty has arisen in the past, and it may arise again if this provision remains as drafted. I refer particularly to the special penalty offences in Clause 5 which involve the laying of poisons or the use of pole traps. Both are unselective methods of killing birds and the pole trap is barbaric. A constable may wish to establish whether a suspect has under his control a supply of the relevant poison or pole trapping equipment, suspecting very strongly that he does. Without powers for the police to enter premises, a culprit simply needs to claim that some outsider planted the poison or trap on land under his control. Many investigations have foundered on this point in the past and if the Minister would like instances of this I am able to provide them. My amendment would cover those and other similar offences specified in Clause 5 and the special penalty offences in Clause 3 which do not involve Schedule 1 species. It is vital that search warrant powers appropriate to the gravity of such offences be granted, and I therefore beg to move.

    I support the amendment. The use of a search warrant is the kind of protection we require. We were talking about whether a policeman can go on land, but the use of a search warrant given by a magistrate is the kind of thing we must have before we can, with justice, seriously prosecute these offences. These offences will be very hard to deal with without this power, and I therefore hope the Minister will accept the amendment.

    Again, I agree with the amendment. 1 undertake to raise the matter with my noble friend Lord Bellwin and therefore invite the noble Lord to withdraw the amendment.

    I am grateful to the noble Lord for that assurance and beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 18 agreed to.

    [ Amendment No. 325 not morel.]

    After Clause 18, insert the following new clause:

    ( " Summary prosecutions

    .—(1) This section applies to—

  • (a) any offence under section 1(1) or 3(1) involving the killing or taking of any wild bird;
  • (b) any offence under section 9(1) involving the killing or taking of any wild animal; and
  • (c) any offence under section 12(1) involving the picking, uprooting or destruction of any wild plant.
  • (2) Summary proceedings for an offence to which this section applies may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge; but no such proceedings shall be brought by virtue of this section more than two years after the commission of the offence.

    (3) For the purpose of this section a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence as aforesaid came to his knowledge shall be conclusive evidence of that fact; and a certificate stating that matter and purporting to be signed shall be deemed to be so signed unless the contrary is proved.").

    The noble Lord said: This is intended to remedy a weakness in the Protection of Birds Acts. It has been found that very often the person committing the offence would have disposed of the illegally taken eggs or birds and the offence would come to light only when they were found some time later in the possession of possibly an innocent or, at any rate, ignorant third party. The period inside which proceedings must start has been extended to two years and we believe that that is a sensible compromise between perpetual jeopardy and the present all-too-easily-escaped six months' limit. I beg to move.

    I am delighted to see the Government putting down this amendment, and I warmly welcome it.

    On Question, amendment agreed to.

    Clause 19 [ Penalties, forfeitures etc.]:

    [ Amendments Nos. 327 and 328 not moved.]

    6.40 p.m.

    moved Amendment No. 329:

    Page 18, line 13, leave out (" £500") and insert (" £1,000 ").

    The noble Baroness said: I raised the question of the amount of the fines at Second Reading. We think that £500 is quite inadequate when one considers that a peregrine can be sold for anything between £1,000 and £1,500. It seems very unreal to have £500 as a maximum. A noble Lord suggested that there is an alternative prison sentence, but we should not wish to see a prison sentence imposed for an offence of this kind, which seems to me very much to be a case where it is the pocket which should be hit. It is very difficult to catch people who arc trying to get rare birds and eggs, and it seems to me that the courts should have very strong powers of fine in these cases. In speaking to this amendment I can speak also to Amendments Nos. 330 and 331, since the principle is exactly the same. I beg to move.

    Since most of the time I seem to be against the Opposition Front Bench, it gives me great pleasure to support the noble Baroness here. I entirely take her point that by and large prison sentences are not appropriate in these cases, but extra fines most certainly are.

    I am sorry to hear that from my noble friend behind me, because I am not in favour of the amendment. While understanding the intentions behind the amendments, the Government consider the Bill as drafted to achieve the right balance, and this reflects the present position. We carefully considered an increase in the maximum penalty levels, but concluded that it was right to use the statutory maximum fine, currently £1,000, for offences involving the illegal introduction of non-native species, which are potentially the most harmful of the offences in this part of the Bill. Also, we have maintained the power which allows magistrates to send people to prison in respect of certain offences for up to three months and the multiplier provision which allows penalties to he applied separately in respect of each bird or egg which is the subject of a charge. That is the Government's view on this matter, and I hope that the noble Baroness will withdraw the amendment.

    No, I shall not withdraw the amendment because we feel strongly that the maximum fine should be £1,000.

    6.44 p.m.

    On Question, Whether the said amendment (No. 329) shall be agreed to?

    Their Lordships divided: Contents, 52; Not-Contents, 67.


    Avebury, L.Brockway, L.
    Beaumont of Whitley, L.Brooks of Tremorfa, L.
    Bernstein, L.Bruce of Donington, L.
    Boston of Faversham, L.Caccia, L.

    Cledwyn of Penrhos, L.Melchett, L.
    Collison, L.Milner of Leeds, L.
    David, B.Monson, L.
    Davies of Leek, L.Noel-Baker, L.
    Diamond, L.Ogmore, L.
    Donaldson of Kingsbridge, L.Peart, L.
    Hale, L.Phillips, B.
    Hampton, L.Ross of Marnock, L.
    Houghton of Sowerby, L.Seear, B.
    Howie of Troon, L.Segal, L.
    Jacques, L.Stanley of Alderley, L.
    Jeger, B.Stedman, B.
    Kilbracken, L.Stone, L.
    Kilmarnock, L.Thurso, V.
    Kinloss, Ly,Tryon, L.
    Knutsford, V.Underhill, L. [Teller.]
    Listowel, E.Wallace of Coslany, L.
    Llewelyn-Davies of Hastoe, B. [Teller.]Wells-Pestell, L.
    White, B.
    Loudoun, C.Wigoder, L.
    Lovell-Davis, L.Winstanley, L.
    McCarthy, L.Winterbottom, L.
    Massereene and Ferrard, V.


    Ailesbury, M.Hylton-Foster, B.
    Airey of Abingdon, B.Inglewood, L.
    Alexander of Tunis, E.Killearn, L.
    Allerton, L.Kilmany, L.
    Avon, E.Kimberley, E.
    Balerno, L.Kinnoull, E.
    Bathurst, E.Lauderdale, E.
    Caithness, E.Long, V. [Teller.]
    Campbell of Croy, L.Lonsdale, E.
    Cathcart, E.Lyell, L.
    Chelwood, L.McFadzean, L.
    Chorley, L.Mancroft, L.
    Cockfield, L.Margadale, L.
    Cross, V.Marley, L.
    Cullen of Ashbourne, L.Middleton, L.
    Dacre of Glanton, L.Mills, V.
    Daventry, V.Monk Bretton, L.
    de Clifford, L.Northchurch, B.
    De La Warr, E.Onslow, E.
    Denham, L.Orkney, E.
    Drumalbyn, L.Orr-Ewing, L.
    Dundee, E.St. Aldwyn, E.
    Ellenborough, L.Saint Oswald, L.
    Elliot of Harwood, B.Sandford, L.
    Fortescue, E.Savile, L.
    Fraser of Kilmorack, L.Skelmersdale, L. [Teller.]
    Gainford, L.Stradbroke, E.
    Gisborough, L.Strathclyde, L.
    Glenarthur, L.Swansea, L.
    Grimstone of Westbury, L.Swinfen, L.
    Hailsham of Saint Marylebone, L.Trumpington, B.
    Vickers, B.
    Halifax, E.Vivian, L.
    Home of the Hirsel, L.Yarborough, E.

    Resolved in the negative, and amendment disagreed to accordingly.

    6.52 p.m.

    had given notice to move Amendment No. 330:

    Page 18, line 16, leave out (" £50 ") and insert (" £100 ").

    The noble Baroness said: I have in effect spoken to this amendment already. I feel very strongly that £50 is totally inadequate, but I think that in view of the vote we have just taken we should not move this amendment for the moment but should wait to hear what happens to Amendment No. 332 to be moved by the noble Lord, Lord Craigton. So for the moment I will not move this amendment.

    [ Amendment No. 331 not moved.]

    moved Amendment No. 332:

    Page 18, line 19, leave out ("£500") and insert ("the statutory maximum").

    The noble Lord said: This amendment is, in a way, a matter of principle. The effects of it would be to increase the fine to £1,000, about which your Lordships have already voted. But, as I understand it, the situation in magistrates' courts is that magistrates are likely to work on the Act in front of them; so far as the fine is concerned, this may have been increased in later reprintings of the Act, and the magistrates may not have the information. Would it not be more sensible, in view of the erratic value of money, to put no figure in here, as my amendment suggests, and then, in future legislation, instead of saying "the statutory maximum" you could say "half the statutory maximum". But as it is the situation is unsatisfactory, and I believe there is an improvement here. I beg to move.

    The Government believe that the appropriate penalty for offences against protected species is £500. The term "statutory maximum" is reserved specifically for linking the maximum summary penalty for offences triable either summarily or on indictment to the inflation-proofed prescribed sum as defined in the Criminal Law Act, and that is currently £1,000. Maximum penalties for all new summary offences in both local and national legislation have, since the Criminal Law Act 1977, been fixed, according to the relative gravity of the offences concerned, on a four-point scale—£50, £200, £500 and £1,000. Under normal circumstances £1,000 is currently the maximum financial penalty which may be imposed by magistrates' courts, and is thus reserved for the most serious offences. I hope that with that clarification my noble friend will not wish to press his amendment.

    I must say that I do not really understand the line the Government are taking on this unless it is coming to them from the Home Office rather than from their scientific advisers; because, as (I think it was) the noble Earl, Lord Onslow, said on an earlier day, it is possible now to sell young peregrines for well over £1,000, so the statutory maximum fine does not at the moment equal the monetary gain which somebody is likely to be able to achieve by stealing one of the rare species dealt with in this Bill. That is today, and we all know from previous experience of the Protection of Birds Act that the level of the monetary penalty got out of date very quickly. Indeed, in another place my honourable friend Mr. Hardy had to introduce a Bill to bring the penalties in the Protection of Birds Act up to date—an absolutely ridiculous procedure and a waste of everybody's time in both Houses, except that it was a very important outcome. Nevertheless, it is absurd, it seems to me, for us to get ourselves into that muddle again.

    If we insert the statutory maximum in this Bill it will be automatically increased as the years go by and we shall not have the business of endless Private Members' Bills having to go through both Houses of Parliament increasing £500 to £600 and then, three or four years later, increasing £600 to £750 and so on—all the time knowing that when this Bill was made an Act the monetary penalties were not sufficiently high to counteract the types of offence which we know are already occurring under the existing legislation. We on this side of your Lordships' Committee, as I think my noble friend has already made clear, are not at all keen on people being sent to prison for offences of this type. It does not seem to us to be remotely appropriate; but if we are going to lose that power—and I think that, from the sound of it, we would have had some support from noble Lords opposite—we really do need to have an adequate monetary penalty in the Bill.

    The amendment moved by the noble Lord, Lord Craigton, would achieve that, and would achieve its being index-linked as well, which would, as I have said, save us a lot of time in the future. I really do think that this is something for which, from my reading of previous debates, there is a lot of support on both sides of the Committee, and which the Government should really be prepared to accept.

    If the statutory maximum is an inflation-linked sum and yet it is the highest fine that can be imposed, the Government appear to have got themselves into rather a difficult situation. One can quite well see that it is in some ways in the interests of justice that fines can be worked on a different scale, with four different scales depending on the gravity of the offence, and that these can be tied to inflation in such a way that we do not have to go on passing Bills the whole time. On the other hand, you have a very difficult situation where, as is occurring now, the profit to be made from a crime which is not in itself one that you would necessarily put in the absolute top category is such that just one of these crimes, successfully committed just once, will produce a larger profit than the fine.

    My noble friend Lord Thurso tells me that the bottom is falling out of the falcon market. I do not ask him how he knows these things, but that may be so. But whether or not it is so, there is a very real difficulty here. May I ask the noble Earl the Minister whether it would be possible, for instance—and I am sorry to admit my ignorance on this matter, but I think noble Lords will agree that this is in fact a rather complex one—to put down an amendment at a later stage providing that the penalty should be (shall we say?) half or three-quarters of the maximum. At least as I understand it, that would get over the inflation problem, if it did nothing else. It would