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Deer (Amendment) (Scotland) Bill Hl

Volume 570: debated on Thursday 21 March 1996

The text on this page has been created from Hansard archive content, it may contain typographical errors.

6.10 p.m.

Report received.

Clause 1 [ Constitution, functions and membership of Deer Commission for Scotland.]:

moved Amendment No. 1:

Page 1, line 16, after ("conservation,") insert ("humane,").

The noble Lord said: My Lords, I start by declaring the same interests as I declared at our Committee proceedings and at Second Reading in that I own a deer forest in Scotland and I sit on the Stalking Committee of the British Field Sports Society.

Together with Amendment No. 1, I would like to speak to Amendment No. 2 and Amendment No. 60 with which it is grouped. These amendments continue attempts to get the welfare of deer onto the face of the Bill, as a matter which the commission must respect as it goes about its duties. At the Committee stage we attempted to insert the welfare of deer among the main functions of the new commission. Now we are merely trying to suggest that any control of deer numbers must be humane, as per Amendment No. 1. The words "the welfare of deer" are now proposed under Amendment No. 2 for inclusion in the new commission's balancing duties, so that the commission in exercising its functions would have the duty:

"to take such account as may be appropriate in the circumstances of—
(a) the size and density of the deer population and its impact on the natural heritage",

and it is here that we would insert under (b) "the welfare of deer".

Then the clause would go on to read:

"the needs of agriculture and forestry; and … the interests of owners and occupiers of land".

Amendment No. 60 suggests a new definition for the meaning of the word "welfare" which may not yet be perfect but which attempts to meet the objections raised at Committee stage and made elsewhere since. Our suggested definition in Amendment No. 60 therefore is as follows:

"'welfare' includes the concept that wild deer are living in a healthy condition within the carrying capacity of their normal range for the time of year in question, and that management to achieve this requires maintaining the herd at a number which does not exceed that carrying capacity, by means which should not cause unnecessary suffering and which include the use of firearms and ammunition as sanctioned by section 23A of this Act".

As I understand the matter, the objections to including "welfare" on the face of the Bill are largely twofold. First, there is the fear that one day those who enjoy stalking may be prevented from shooting deer because the meaning of welfare may come to mean that. I trust that the amendment deals with that point. Secondly, there is the fear that welfare might prevent some of the more severe exercises to reduce deer numbers and therefore defeat what some people appear to think should be one of the main purposes of the Bill. I hope that Amendment No. 60, as worded, gives some comfort there too.

I appreciate that it is possible to criticise the wording by saying, for example, that the wording—to quote the amendment—

"deer … living in a healthy condition within the carrying capacity of their normal range"

is not sufficiently tight legally. One could perhaps find a tighter or different formula. One could perhaps define a healthy herd as one which does not, on a three-year average, lose more than 10 per cent. of its beasts under 12 years of age through death in the late winter and early spring. One could perhaps stipulate that a healthy herd of hinds should not have more than, say, 20 per cent. of its number which have not calved in the previous year. Both those indications would suggest that there were too many deer for the carrying capacity of the range in question.

I shall not weary the House further with such technical suggestions, which should in any case probably be encapsulated in guidelines issued by the future commission. I merely remind your Lordships that there was unanimity in our hearings in Edinburgh from all sides of the land use debate that the welfare of deer should be clearly stated as the duty of the new commission. I also remind your Lordships that there was similar unanimity in our Committee proceedings in the Moses Room on 4th March with, on that occasion, I regret to say, the dissent of my noble friend the Minister.

In those circumstances, I hope that the Minister can be somewhat more accommodating today. I commend the amendments to your Lordships and beg to move.

My Lords, I support Amendment No. 2. I am aware that the Minister has put forward an amendment which mentions the word "welfare of deer". I agree with the noble Lord, Lord Pearson, that it is essential that the words "welfare of deer" should appear at the beginning of the Bill. That then helps to govern everything else that is to be enacted in the Bill. I should very much like to support Amendment No. 2.

6.15 p.m.

My Lords, I too support this amendment. The red deer is our largest indigenous wild mammal. To my mind it is one of the noblest of animals. Why is it that every man's hand seeks to be against it?

So far as I can see, this Bill is largely about killing deer. In fact the word "extermination" was originally in it. I am very glad to see that people are now talking about the welfare of the deer.

My Lords, I was interested to receive a letter from the Scottish Landowners' Federation. Noble Lords will appreciate that that organisation does not simply involve people who own deer forests and that kind of thing. Many small landowners are involved as well as people who are closely concerned with the environmental movement and so on.

On this subject, the federation said:
"The welfare of deer is important. We think it is appropriate that the Deer Commission for Scotland should have some statutory duties relating to deer welfare".
The federation then says what it thinks deer welfare means and goes on to say:
"Having heard the Minister's reply at Committee stage to the debate on whether the Commission should have a duty to further the welfare of deer, we agree with the Minister that the Commission should not be given such a duty. We do think, however, that it would be very useful to include deer welfare in the balancing duties of the Commission in the proposed new Section 1(1)(a) of the principal Act. The Commission would therefore have a duty to take such account as may be appropriate in the circumstances of deer welfare".
Those comments seem to me interesting in view of the speech made by the noble Lord, Lord Pearson. They relate to the same point. I should be interested to know whether my noble friend the Minister has anything to say on that matter.

My Lords, I suppose that I should repeat the declaration of interest that I have made at every other stage of the Bill; namely, that my family owns a deer forest, although I do not have any direct financial interest in it. Also, perhaps I might mention, on the other side of the fence, as it were, that in another part of the country I own plantations which are now quite well grown. The contractors who put up the fences before we planted managed to fence in a buck and two does, and as a result I had very great difficulty in growing them in the first instance. Therefore, my interests are in two directions. Needless to say, as my name is on Amendment No. 2, I support it.

My Lords, I too support the noble Lord, Lord Pearson, in the amendment, despite the fact that at Committee stage he accused me of not paying attention to what he said and not listening. Having been in the noble Lord's presence for four days, I can assure him that it is absolutely impossible not to hear him. I support him on this amendment.

My Lords, it is nice to hear further unanimity around the House on this amendment. My noble friend Lord Pearson was a little unfair to me when he said that I was the only person in Committee to break the unanimity in that I acknowledged then—and I acknowledge now—that the sentiment behind the amendment tallies exactly with my own sentiments and with the policy that lies behind the Bill.

I shall not repeat what I said in Committee. Noble Lords may read it all in Hansard. The point is that "welfare" appears throughout the 1959 Act and indeed in this Bill in specific provisions made, for instance, for night shooting and out of season shooting regarding the firearms with which one can take deer and so forth.

I repeat the fact that welfare is a key element of our deer legislation. If it can be incorporated in such a way as to be consistent with the rest of the Bill, I shall be very pleased to accept it. Consequently, I have been looking very carefully to see whether a formula can be found to ensure that the commission can take into account welfare considerations across its range of functions, while not conflicting with the general functions that we lay upon it through this Bill.

I wanted to hear the thoughts of noble Lords on this amendment and also to give my draftsman a little more time to work out suggestions regarding the inclusion of welfare in Clause 1. There will be serious legal difficulties if we get it wrong. Therefore, I hope that the amendment can be withdrawn on the basis that I shall bring forward an amendment on welfare at Third Reading.

My Lords, I am grateful to my noble friend. I apologise if I was unfair in suggesting that he was not entirely with us in our unanimity in the Committee stage proceedings. On the other hand, what he has said tonight would not go far enough unless he agreed to bring forward at the next stage some version of the word "welfare" and the duty that the commission should have towards the welfare of deer.

I apologise to the noble Earl, Lord Buchan, if he thought I was accusing him of not attending to what I may have been saying in Edinburgh. My suggestion was that he was not fully aware of the extent to which the committee discussed the question of tagging at that time. I repeat any apologies which may be in order.

I thank all noble Lords who spoke in support of the amendment and I am sure that they join me in wishing my noble friend on the Front Bench every success in bringing forward at our next stage of the proceedings an amendment which will be acceptable to all sides of the land use and deer debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

moved Amendment No. 3:

Page 2, line 6, after ("total") insert ("of whom six shall form a quorum").

The noble Lord said: My Lords, my noble friend the Minister may wish to add something to this amendment. It is a question of trying to get a quorum into the arrangements for the new commission whereby we are suggesting a minimum of six. Having read my noble friend's amendment, he may be about to suggest a minimum of five. I feel sure that we would welcome that. I beg to move.

My Lords, I support the noble Lord, Lord. Pearson of Rannoch, in this amendment. Indeed, I thought we had agreed that our amendment would say "five". I shall be happy therefore to have the amendment withdrawn in favour of that of the noble Earl.

My Lords, I intended to support the amendment because the commission contained representations from so many interests. On many occasions a quorum is often only three and that would not be acceptable. However, I am happy with the noble Earl's suggestion of five.

My Lords, at the appropriate moment I intend to move Amendments. Nos. 74 and 75 which do exactly what noble Lords anticipate; that is, ensure that the minimum quorum is five. I would add that the commission may determine to have a quorum of a greater number than five if it so wished and that option will remain open to it. On that basis, I look forward to moving Amendments Nos. 74 and 75 and hope that Amendment No. 3 will be withdrawn.

My Lords, I am grateful to my noble friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 4:

Page 2, line 6, after ("total,") insert ("with such knowledge or experience of deer,").

The noble Lord said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 5 to 10 and 12. I shall speak briefly in support of Amendment No. 5, tabled in the name of the noble Lord, Lord Carmichael of Kelvingrove, when he moves it and I shall speak to Amendments Nos. 7 and 10 separately when I have concluded what I wish to say about the other amendments in the group.

We come now to the composition of the new commission for which the Bill, as drafted, may hold a major change from what we have at the moment. It should be remembered that the 12 members of the present Red Deer Commission have to be appointed entirely from nominees of the various interested parties, apart from the chairman who is appointed by the Secretary of State.

The present Act requires that the 12 other members shall be appointed, one from nominees of the Nature Conservancy Council—that probably means Scottish Natural Heritage nowadays; one from nominees of the Natural Environment Research Council; three from nominees from organisations which appear to the Secretary of State to represent the interests of owners of land used for agriculture or forestry; two from nominees of organisations which appear to represent the sporting interest in deer; three from nominees which represent the interests of farmers and crofters and two from nominees of such organisations that appear to the Secretary of State to represent the interests of hill sheep farmers. That makes 12 in total.

It is generally accepted that this system has proved rather inflexible. It has not proved possible to appoint some good people to the commission because they were not nominated by one of the interests quoted. It may be generally accepted therefore that the Secretary of State needs more flexibility in making future appointments; but not the almost total flexibility envisaged by the Bill.

My noble friend the Minister was good enough to guarantee in our Committee proceedings that at least one member should be someone who manages deer for sporting purposes. I hope therefore that he will not think me ungrateful if I say that some of us feel that the Secretary of State should be further constrained. Indeed, at our hearings in Edinburgh there was widespread, if not unanimous, support for the suggestion that the Bill should reflect a halfway house between inflexibility and flexibility of appointment. That is what the amendments attempt to achieve.

Amendment No. 4 suggests that everyone on the new commission should have,

"such knowledge or experience of deer",

as the Secretary of State considers appropriate. I hope that that does not seem unreasonable when one considers that the commission will be dealing with matters wholly concerned with deer. That is its entire remit.

Amendments Nos. 6, 8, 9 and 12 have the effect of obliging the Secretary of State to appoint at least three-quarters of the commission from people who appear to him to have knowledge or experience of one of the interests covered by Clause 1 (3)(3A)(a); that is to say, deer management which, under the Bill, is not necessarily the same as the sporting interest in deer. We therefore include that as a separate heading with Amendment No. 8.

The other categories of interest which are included are,

"agriculture (including crofting) (iii) forestry and woodland management; and (iv) the natural heritage".

That would still leave one-quarter of the commission which the Secretary of State could appoint with a large degree of flexibility, constrained only by the suggestion under Amendment No. 4 that he should believe that they all have some knowledge or experience of deer. I accept that Amendment No. 4 may go a little too far; it may prevent the concept of the non-executive director or even perhaps two non-executive directors. I use that expression to describe someone who may be wise and generally knowledgeable in other fields and who could bring that authority to the commission. Nevertheless, I hope my noble friend will accept the amendment in the spirit in which it is offered.

Amendments Nos. 7 and 10 are in a slightly different category but, as they are part of this group, I shall speak to them briefly. They are tabled to enable me to ask my noble friend the Minister whether we really want people on the commission who have knowledge "or" experience of the interests mentioned. Surely we want people on the commission with experience of these matters, for the simple reason that experience gives knowledge which will be of value in its deliberations. I am not sure that knowledge per se will be quite so helpful. I shall be grateful for my noble friend's view on that matter. I hope that people with only a theoretical knowledge of deer will be in a small minority and that my noble friend can reassure me on that point.

I conclude by reminding your Lordships of how important it is that the interested parties in Scotland have confidence in the new commission. If all the various disparate interests which now bear upon deer in Scotland have confidence in the composition of the commission, it will find its remit very much easier to carry out. It is in that spirit that I have tabled the amendments. I beg to move.

6.30 p.m.

My Lords, I am very grateful to Lord Pearson of Rannoch, as my Amendment No. 5 was included in his group of amendments. I am most grateful to have his support.

I want to give a slightly different view on the question of the balance of the commission. At present it appears that the deer commission tends to have a bias in favour of deer management or landowning interests. This can often be a conflicting interest with that of, for example, the crofting interest, and the crofting people are the people who have suggested that we put this amendment down. One group wish to control deer causing damage and the other wish to maintain deer for sport. Both of them are perfectly reasonable, but they can have conflicting objectives.

At present, there are many who feel that estates routinely ignore the reports of damage by deer. For example—again, this is in the experience of the Crofters' Commission—following reports of damage by deer in North Uist over a period of more than 12 months, there was no action by the estate. It was only on the personal intervention of the Chairman of the Red Deer Commission that the estate could be persuaded to take action. In this instance the action of the chairman was very welcome, but there is no obligation on the Chairman of the Red Deer Commission to engage in such action. It is difficult to envisage a deer commission with a bias of interest in favour of deer management interests being at the forefront of pre-emptive control agreements. Yet, a better balance of representation on the commission would encourage and foster a sustainable approach to deer management, taking account of all factors, without there being a bias towards one set of interests over another.

It would also allow the development of a proactive and pre-emptive approach to control agreements under Section 7 of the principal Act which, of course, is amended by Clause 5 of the present Bill.

Overall, it would begin to move away from deer being the domain of the few, and would provide a forum for tackling problems that would have the confidence of all groups. In other words, a well balanced commission could talk and begin to understand and appreciate the other point of view rather better, perhaps, than a smaller one.

A simple and practical suggestion is that it may be appropriate to look at Section 3A(a), and the noble Lord, Lord Pearson of Rannoch, referred to this. It lays down four distinct areas of interest, and with between nine and 12 persons on the commission, three representatives could be drawn from each interest group. That would be one way forward, but I am interested to hear from the Minister, who has gone a fair way with us so far, whether he is willing to insert this amendment in order to get a balance in the Deer Commission.

My Lords, my noble friend has a point in his amendment. Like my noble friend Lady Carnegy, I also received a letter from the Scottish Landowners' Federation. On this particular point which is, perhaps, one that your Lordships ought to consider, it says:

"As deer management comprises most or all of the Deer Commission's activity we do not think that 'deer management' should be one of four specific interests to be represented".
That is a point, because deer management really goes right the way across the whole duties of the Red Deer Commission, and it is rather a vague phrase whereas it should be very specific. I would have thought that my noble friend's suggestion of the sporting interest being a specific representation is an important one because, at the end of the day, if this Bill does not have the confidence of those people who will actually have a direct management interest in the deer, then it is not likely to be the success that we would want it to be.

My Lords, I would particularly like to support Amendment No. 6, which seeks to replace "may appoint any person who appears" with "shall appoint persons who appear". I am not English by birth, but my understanding of "may" is that it is a very vague request to the Secretary of State. It is important, if this Bill is going to be meaningful, that there are also duties laid on the Secretary of State. The word "shall" is more appropriate.

My Lords, I apologise that the first time I did not declare an interest. In fact, I own a deer forest on the Island of Mull in the Hebrides. I am very glad to see that the sporting interests are going to be represented on this new commission, because something that has not really been brought home is that deer are an extremely valuable natural resource. They bring in a lot of foreign currency. Currently it costs around £250 to shoot a stag and around £60 to shoot a hind. If at all possible, they should be shot commercially rather than just culled out of hand.

The noble Lord mentioned crofters. I know of a crofter who shot 17 beasts and just left them on the ground. As far as I could see, they were not doing any real damage, as he only had grass. That was a very considerable waste of a natural resource.

My Lords, as this is my first intervention in this debate since Second Reading, I shall start by declaring the interest that I declared then, in that I own an estate in the Angus glens which, although not a traditional deer forest, winters large numbers of stags.

I would like to make a few general comments about what I see as the key issue here. Much has been said on this subject throughout the passage of the Bill and it is clear that there still remains not a little gap between the Government and other noble Lords. As has been said many times already, the issue here is for the future, as we all have a great deal of confidence in the current chairman and his team. There remains a genuine concern, with the current wording of Clause 1, that those with the day to day management of deer on the ground—the owners and occupiers of the deer range—could be under-represented on the new commission.

At Second Reading I had not seen this as a legitimate concern, but my views have hardened somewhat since then. I must confess that I was more than a little surprised by the number of different organisations who were called to give evidence, either in person or in writing, by the Select Committee in Edinburgh. I counted 22; there may have been more, all representing a legitimate involvement in deer management and having, in the words of the Bill, "knowledge or experience of deer management". I emphasise the word "or" here.

Interestingly, of those organisations, only a quarter seemed directly to represent those people with a sporting interest in deer, although a number of others enjoy the economic benefits from sport. This alone raises concerns among deer managers about their future representation on the new commission.

I know that the Association of Deer Management Groups and others believe that this is a real outstanding issue. Although I am broadly in favour of the amendments of the noble Lord, Lord Pearson, I have some reservations about seeing the phrase, "the sporting interest in deer" on the face of the Bill. I would prefer a phrase such as, "economic interest in deer". My reservations spring partly from reasons that killing for sporting purposes is now somewhat controversial and may not have been something that would have concerned those who drafted the 1959 Act.

Also, and this may be somewhat more controversial, as I said at Second Reading, there is a belief in certain quarters that those who have managed deer in the past only for sporting purposes may not have done a particularly good job. Nevertheless, the new commission, as other noble Lords have said, needs to bring with it as wide a range of interested parties as possible. It seems to me that there must exist a compromise position, although I am still undecided on this issue. I am therefore most interested to hear what my noble friend the Minister has to say.

My Lords, I should like to back up what my noble friend Lord Woolton has said. He lives very close to where I live and he knows all about deer and I do not. He is right to recognise the need for balance on the commission. For that reason I see the merit in the amendment of the noble Lord, Lord Carmichael of Kelvingrove, and I see why the crofters want to include such a provision in the Bill. At the same time, the sporting interest in deer is an enormous factor in the economy of the deer country in Scotland. Where I live it is very important indeed.

The people whose main interest is tie economic side of the sporting interest need to have confidence in the commission. We have to look for balance. I have said before that the new body will probably not speak entirely according to the balance that is held. You do not want teams of people opposing each other on such a body. You want a blend of discussion over the whole subject. I am sure that that can be achieved without necessarily making sure that one group has more representatives than another.

My Lords, we have just heard a very interesting suggestion from the noble Earl, Lord Woolton, and I shall be interested to hear what the noble Earl, Lord Lindsay, thinks of it later on. I do not know whether I am right or wrong about this but I think I am right that under the Bill as presently worded, in Clause 1—in subsection (3A) of the 1959 Act—it will be quite possible for there to be no more than one member of the commission who had any knowledge or experience of deer management. I may be quite wrong about that—the noble Earl, Lord Lindsay, will be able to tell me whether I am right or wrong—but if I am right that is one of the reasons why I support these amendments.

My Lords, this is one of the most important parts of the Bill. I hope that through a combination of clarification and compromise we can achieve a Clause 1 which suits all interests.

Perhaps I may start with the clarification. Amendment No.4, moved by my noble friend Lord Pearson of Rannoch and spoken to by a number of noble Lords, proposes that members of the commission shall have such knowledge or experience of deer as the Secretary of State considers appropriate to represent the interests groups set out in Section 1(3A).

Section 1(3A) already sets out that the Secretary of State may appoint persons with knowledge or experience of those areas of interest—here I stress the wording,
"in so far as that matter may be affected by the Commission's exercise of their functions".
Now the commission's exercise of its functions all relate to deer, so it follows that it is knowledge or experience of how deer matters affect those four interest groups that is relevant here. I would stress to the House that the point raised by the amendment is therefore already covered. There must be knowledge or experience of how deer affect the interest groups concerned. I would submit, therefore, that the amendment is unnecessary.

The main aim, as noble Lords will know, of new Clause 1 on appointments is to ensure that future Secretaries of State have the flexibility they need to choose a commission which reflects a fair balance between the various interests in deer and also to choose the best candidates for the job, whoever they may be and whichever interest in rural land use issues they may have.

Amendment No. 5, to which the noble Lord, Lord Carmichael, spoke, sets out that the Secretary of State shall endeavour to establish a balance of interests between those appointed to the commission. Maintaining a balanced commission is indeed essential so that all those in Scotland who have an interest in deer can have confidence that the commission will take decisions which reflect a fair and balanced approach to the various issues raised. However, Amendment No. 5 is unnecessary. The appropriate balance is achieved by the stipulation of the four interest groups set out in Section 1(3A)(a), by the stipulated proportion of deer managers set out in paragraph (b) and by the Secretary of State's obligation to carry out consultation before making appointments. My lawyers advise me that to go further would effectively mean a reversion to the 1959 formula which, I think most of us agree, is too restrictive. I shall double check that advice but that was the initial advice I received when we considered the noble Lord's amendment.

Amendment No. 6 is also unnecessary. Clause 1 as drafted has the effect already of replacing "may" with "shall". Moreover, the subsection would then become grammatically incorrect. The Secretary of State is already obliged by subsection (3) to appoint persons to represent the interests of the four categories mentioned in new subsection (3A). If we were to introduce the word "shall" instead of "may" to the beginning of subsection (3A) the Secretary of State would be obliged to appoint any person with the requisite qualities rather than those he considers most suited to the task from these four categories. In a sense "may" means "shall" because he has no surplus discretion in this area.

Amendments Nos. 7 and 10 would remove knowledge of a relevant subject as a reason to justify an appointment to the commission. Amendment No. 7 proposes the removal of knowledge from the general provision on appointments. I am uneasy about the inflexibility that this implies. It must surely be open to the Secretary of State to appoint, for instance, academic people who might have in-depth interests but have no experience. Amendment No. 10, when taken in conjunction with the other proposed amendments, has the same effect of excluding persons with knowledge only from appointment, and I cannot accept that principle.

Knowledge and experience are overlapping concepts and I believe that from a legal point of view it would be quite difficult to distinguish where knowledge stops and experience begins or where knowledge might be otherwise termed as experience. The flexibility of this part of the Bill is important. I do, however, understand the concerns over the distinction between knowledge and experience. Both may be equally valid depending on the circumstances. Our aim is that individual members of the commission should be able to contribute to the work of the commission and that collectively the commission has the necessary range of knowledge, expertise and experience.

I turn to Amendment No. 9. I have said that it is important that the commission retains the confidence of those who have the general duty to take or kill deer on their land and therefore hold both the rights and the responsibilities of managing deer throughout the country. Only if these people can be confident that their interests are represented to a significant proportion on the commission will they be confident that the commission is acting in their best interests. It was for that reason that in Committee I moved an amendment to ensure that at least one-third of the commission have knowledge or experience of deer management.

To make the issue even more clear I have decided to add a further stipulation to the effect that those chosen to represent the deer management category should be chosen from nominees of organisations representing deer managers. This will ensure that all those who manage deer on a day-to-day basis can have confidence that those chosen to represent them on the commission well understand the priorities and practices of all deer managers throughout the country. I shall be bringing forward an amendment at Third Reading to that effect.

Amendment No. 8 dealt with the sporting interest in deer. I do not consider it necessary to include a separate category to represent that interest since we have already made it clear in an amendment moved in Committee that deer management includes sporting interests. I believe what is of much greater relevance is the undertaking that I have just given to noble Lords to bring forward an amendment at Third Reading whereby the deer management members of the commission will be nominees nominated by the deer management organisations. Therefore, the priorities of deer managers can only but be represented by that element.

Perhaps I may make one quick comment on the suggestion made by my noble friend Lord Woolton about economic rather than sporting interests. I am happy to talk with my draftsman about such terminology, but I suspect that "economic interest" is even more difficult to define in that the taking of deer, for instance, which are perhaps damaging crops or trees, could in a sense be classed as taking deer for an economic interest. I suspect that it is rather a wide title to use in the Bill.

I hope that through explaining some of the terminology in Clause 1; by promising to bring forward an amendment at Third Reading on that clause; and in quite genuinely looking at the debate we have had tonight on the various amendments moved as regards the appointments system that may give us further inspiration to bring forward further compromises on Clause 1, my noble friend will feel able to withdraw his amendment.

My Lords, I am most grateful to all noble Lords who have spoken in this debate. I say to my noble friend Lord Woolton that I take the point that a sporting interest in deer is not all that popular in some quarters. But he is right when he says that I took what I said straight from the 1959 Act. I also have to say that I am not one of those who is ashamed of enjoying a sporting interest in deer. It is common agreement that a large number of deer has to be shot in Scotland and perhaps more than have been shot before. Personally, I have never understood why they should be shot by people who are not enjoying themselves as opposed to those who are. I hope that those comments will not be received as being too politically incorrect.

I agree with many noble friend the Minister that the economic interest might also be difficult to define because there are a number of climbing and tourist organisations which enjoy the hills for other reasons and who also have a very powerful economic interest and effect on the economy, particularly of the Scottish Highlands.

The noble Lady, Lady Saltoun, asked whether the Bill, as drafted, before the amendments which my noble friend the Minister proposed, would give only one deer manager on the new commission. My understanding is that at the moment it would give only one person with a sporting interest in deer because deer management includes the sporting interest.

I come to the very gratifying remarks of my noble friend the Minister. I do not quite accept that the amendments, as drafted, would take us back to the 1959 position. I intended to have only three-quarters of the commission representing categories which the Secretary of State thought were already represented on the face of the Bill, and for the other quarter it would have been up to him in a way which the Bill requires for the whole commission.

That being said, perhaps I may take it from my noble friend the Minister that one-third of the commission will be appointed from deer management organisations—that is to say, on nominations from them; and if I may take it that deer management organisations means principally such organisations as the Association of Deer Management Groups, then what he has said is very helpful. However, if deer management includes people who go around counting deer droppings in dense forests in order to work out how many deer there may be, and that sort of thing, then I have to say to my noble friend that I am not sure that his amendment will carry us much further forward.

There does not appear to be anything else I can say at the moment unless my noble friend wishes to clarify the position as to what organisations will be consulted. For my own part I am perfectly happy to leave the matter there. I shall read what he has said in Hansard and possibly have further discussions with him at an early date before we move to the next stage of these deliberations.

My Lords, with the leave of the House, it might help if I say that the aim behind the proposed amendment at Third Reading is that the Association of Deer Management Groups will be the nominating organisation. However, life is never so simple that that can be translated straightaway into the legal terminology required for the face of the Bill. So definitions and other considerations wi11 take place, but I shall liaise with my noble friend between now and Third Reading to make sure that we understand exactly what is happening.

My Lords, I am very grateful to my noble friend. I look forward to those discussions. I hope the other interests which bear upon deer and which are on the face of the Bill, will be represented. Perhaps before we have our deliberations my noble friend will double check the legal advice which he received some time ago so that the anxieties, for instance, of the noble Lord, Lord Carmichael of Kelvingrove, and others, can be met. With that stipulation I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 to 12 not moved.]

Clause 2 [Appointment of panels]:

moved Amendment No. 13:

Page 2, line 43, leave out ("may") and insert ("shall").

The noble Lady said: My Lords, at Committee stage the noble Lord, Lord Carmichael of Kelvingrove, had tabled an identical amendment to Amendment No. 13 on the Marshalled List. But to the great disappointment of the noble Lord, Lord Pearson of Rannoch, and myself, he did not move it. I do not know whether or not we could have moved it ourselves when our names were not to it; that is a detail I shall have to discover. Anyway, we have tabled the amendment again because it is really the other half of Amendment No. 14. Together they form a little package.

The effect of these two amendments is to oblige the commission to seek the advice of interested persons with knowledge and experience of deer management, agriculture, including crofting; forestry and woodland management and the natural heritage, as well as that of any Tom, Dick or Harry they may think fit before appointing a panel.

The importance of this is that if the panels are not composed of people with those kinds of knowledge and experience, the advice they are going to be able to give to the commission will not be worth having. While we are very glad that Amendment No. 89 of the noble Earl, Lord Lindsay, at Committee stage removed Section 6 powers from the panels, we are still of the view that perhaps the noble Earl is rather more starry-eyed over the possible future composition of the commission than we are and consequently of any appointments that it might make.

I shall look forward with great interest to the amendments the noble Earl said he will bring in at Third Reading on the question of the composition of the commission because, perhaps, we shall be more in line by then. At Committee stage he said he would give further thought to the composition of the panels. I wonder whether he has had time to do so. I beg to move.

My Lords, I support these amendments which also stand in my name. Once again, one is brought up against the importance of getting the composition of the commission right. If one succeeds in that, no doubt the commission will exercise its powers in the manner suggested by the noble Lady, Lady Saltoun, but just in case it does not fully live up to expectations in that regard, I cannot help feeling that the amendments would be useful at the local level. Precisely the same philosophy applies to these amendments at the local level as applied to the amendments to Clause 1 that we have just debated but at the national level. Therefore, I hope that my noble friend the Minister will be able to accept them.

7 p.m.

My Lords, perhaps I should say a word since I did not move my identical amendments at an earlier stage. I imagine that both the noble Lady, Lady Saltoun, and the noble Lord, Lord Pearson, who served on the Committee will realise that there was some exhaustion at that point and that we wanted to speed up matters a little. I should be happy if the Minister could accept this amendment or at least find some words to meet its sentiments.

My Lords, I have a confession for noble Lords, and especially for the noble Lady, Lady Saltoun. She and others gave me so many things to think about between Committee and Report that this matter received slightly less of my attention than did some other clauses.

However, I should stress that I am sympathetic to what the amendments seek to achieve. It is important to remember that the commission itself is already balanced with appropriate representation from the main categories of interests. I hope that with the undertaking that I have given about tabling further amendments to Clause 1, some of your Lordships will feel that the commission will become even better balanced. It is that fully representative body which is to make decisions on the representation of local panels. With that in mind, I believe that the commission can be left to make balanced decisions on the appointment of panels. My concern is that in being too prescriptive we will make it more difficult for the commission to set up panels, should it wish to do so. As noble Lords will know, the local panel power has not been used since it was created in 1959.

I want to retain flexibility for the Deer Commission for Scotland. I hope that the composition of the commission commands the confidence not only of noble Lords but of Scotland as a whole that it can be trusted to set up such a local panel. I remind noble Lords that the panel has advisory powers only. It cannot exercise delegated executive powers. A local panel would be set up only subject to permission from the Secretary of State.

I shall now put this matter to the top of the list of those to be pondered between now and Third Reading, having realised that it occupied possibly the bottom place previously. With that undertaking and with possible further discussions with the noble Lady on whether the assurances that I have given tonight carry any weight, I hope that we can reach a decision about what to do on Third Reading.

My Lords, the noble Earl is absolutely right and I am sure that we all agree that the composition of the commission is crucial. If the composition of the commission—I am sorry, but it is rather a tongue-twister—is right, everything else will fall into place. I look forward to hearing what the Minister may say on the subject on Third Reading. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 14 not moved.]

Clause 3 [Particular powers of the Commission]:

moved Amendment No. 15:

Page 3, line 16, after ("the") insert ("welfare,").

The noble Lord said: My Lords, with Clause 3 we come to a particular power of the commission. The clause states:

"The Commission shall have power … to conduct … any experiment, trial or demonstration, relating to the conservation, control or sustainable management of deer, or to any other aspect of the Commission's functions".

In Committee some of us were anxious to make sure that those experiments, trials or demonstrations could not take place without the consent and approval of the landowner in question. We have been reassured on that point. However, Amendment No. 15 would make it possible for the experiments, trials or demonstrations to relate to welfare, conservation, humane control or sustainable management of deer. We suggest that the two words "welfare" and "humane" should appear on the face of the Bill in this clause.

I do not think that at the moment I can speak to Amendment No. 17 which stands in the name of my noble friend the Minister because, frankly, I do not really understand it. I note that it states that,

"the Commission may exercise the powers conferred by subsection (1) … in relation to the general welfare of deer".

I should have thought that it should state that the commission "must" exercise those powers. However, as I have not yet understood where subsection (1) occurs in the legislation, if your Lordships are agreeable, perhaps I may wait to hear my noble friend's explanation of that amendment before I comment on it. In the meantime, in moving Amendment No. 15, I am speaking also to Amendment No. 16 and am seeking include "welfare" and "humane control" in the experiments, trials or demonstrations which the commission shall have the power to conduct. I beg to move.

My Lords, in responding to Amendment No. 15, which has been moved by my noble friend Lord Pearson, and to Amendment No. 16, to which he also spoke, I should like to refer also to my Amendment No. 17. For the avoidance of doubt, Amendment No. 17 will make it clear that the commission can use its research and advisory powers under Clause 3 for welfare purposes. That has the same effect as Amendment No. 15, which has been tabled by my noble friend Lord Pearson and the noble Lady, Lady Saltoun. Therefore, I hope that my noble friend will be able to accept Amendment No. 17 in place of Amendments Nos. 15 and 16. The crucial point is that the amendment is drafted so as to remove any doubt and to allow explicitly for a whole range of welfare issues to be addressed through the powers and provisions of Clause 3.

My Lords, I am most grateful to my noble friend for that explanation. I accept it and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

moved Amendment No. 17:

Page 3, line 18, at end insert—
("(2) For the avoidance of doubt, it is provided that the Commission may exercise the powers conferred by subsection (1) above in relation to the general welfare of deer, in so far as that matter is not otherwise included in their functions under this Act.".").

On Question, amendment agreed to.

Clause 4 [ Emergency powers of Commission to authorise killing of deer causing damage]:

moved Amendment No. 18:

Page 3, line 19, leave out ("authorise killing of") and insert ("deal with marauding").

The noble Lord said: My Lords, in moving Amendment No. 18, I should like to speak also to Amendments Nos. 19, 21 and 56 which stand in my name. We now come to Clause 4, which used to be entitled "Marauding deer" but which is now unfortunately called "Emergency powers of Commission to authorise killing of deer causing damage". This is the clause which still causes some of us the most worry about the Bill. That worry occurs because of the immediacy of the powers that can be used and the fact that they can be used without any public inquiry and even, as I read it, without the agreement of the landowner or occupier in question.

In Committee my noble friend gave us a new safeguard—that the emergency powers of Clause 4 could be used only if the commission was satisfied that none of its other powers was adequate to deal with whatever the situation was. That strikes some of us as perhaps not being much of a safeguard. We come back to the composition of the commission. If the commission is composed of sensible and honourable people who have the welfare of deer uppermost in their minds, together with their other balancing duties, the problem will not arise. But it seems to me that all they have to do—at least on the face of the Bill—is to say that there is not enough time for their other powers to deal with the situation in question. I take it that the other powers are mostly those written into Clause 5 which, in the absence of the agreement of the owner and occupier, give rise to a public inquiry. That takes a very long time.

Although this is not the place to debate it now, I have noted with great satisfaction my noble friend's amendment (Amendment No. 29). I would have thought that if that amendment were to be inserted into this clause, as well as in Clause 5, it would be a great help.

In attempting to define what marauding deer really are, I have tabled a new definition in Amendment No. 56. It reads as follows:

"'marauding deer' means deer which are not being effectively controlled and are causing damage on land or which they are not normally established at the time of year in question".

I have somewhat more confidence in that definition than the definition produced at Committee stage, because it is the definition which appears in the Government's Notes on Clauses on the Bill. I believe that it is also the definition that my noble friend used in the Committee proceedings. Therefore, some of us think it important to have that on the face of the Bill in the definitions, and that Clause 4 should be brought back to where it was before and refer firmly to "marauding deer".

There is a feeling going around that the deer problem in the Highlands of Scotland is perhaps more urgent than it really is. I have had informal discussions with the Red Deer Commission since the Committee proceedings. I understand that at the moment the red deer population, where it is believed chat most of the problem has arisen, particularly with regard to the natural heritage in the Highlands of Scotlandߞthe regeneration of the Caledonian Forest and so onߞis steady. Based on the latest deer count in Caithness and Sutherland, the number is steady. In the east of Scotland, where most of the problem has arisen in the Angus glensߞdeer having moved east over the past few years, for reasons that nobody completely understandsߞit appears that over the past 12 months the voluntary control schemes, in collaboration with the deer management groups, have stabilised the numbers. In some areas in the east of Scotland the numbers are down. I gather that in West Invernesshire there has been a slight increase over the past six years in some areas, but that may be because sheep have been taken off the ground in question. Therefore, deer do better when sheep come off.

The level of complaints appears to have fallen in recent years. The cull of hinds has clearly increased. For all of those reasons, I believe that the situation is under control. I believe that we should be careful before we sanction a clause that appears to contain draconian powers. I would be grateful if my noble friend could enlighten me as to the kind of area to which this clause might be applied. After all, the commission has merely to be satisfied that the deer are causing serious damage, whether directly or indirectly, to the natural heritage generally. It seems to me that that could cover a very large area of ground. There are later amendments to try to narrow the definition of "natural heritage", but the value of a deer forest depends on the number of stags that can be shot on it every year. I do not deny that some deer forests have too many of them. But if we have a clause that can in effect remove the possibility of an area of ground continuing to be a sporting estate, we have to look at it very carefully. I feel that these amendments will be very beneficial. I beg to move.

7.15 p.m.

My Lords, I acknowledge the importance that my noble friend Lord Pearson of Rannoch attaches to Clause 4. It is an emphasis that we have taken into account. Clause 4 remains an important backstop power when emergency action needs to be taken and no other method of control is appropriate. To safeguard land management interests, we have built in a balancing duty in Clause 1 which the commission cannot ignore when it is relevant. Even assuming the worst, there are important safeguards in the general law, including judicial review, open to those who may be affected by the operation of an unreasonable commission, if a future Minister were so unwise as to appoint one.

I am fully confident that these powers must be exercised responsibly. As I indicated on Second Reading, I have listened carefully to comments made by noble Lords and have been prepared to make adjustments to the Bill in Committee to meet the concerns expressed. In particular, I have added the important rider in new subsection (1) of Section 6, that this power can be used only when no other power of the commission is adequate to deal with the situation. That makes it crystal clear that this can only be an emergency power. I have also removed the original reference to "any land" to make certain that this power can be used only in locations where it is essential to take action in this way. If a draconian Secretary of State wants to ride roughshod over owners' rights then he will have to change the law. I remind my noble friend of the safeguards and guarantees in Section 6 of the 1959 Act. For instance, the owner, or person who has the right to take or kill deer on the land from which those deer come, must first be contacted by the commission and given the opportunity to solve the problem before the emergency powers in Section 6 of the 1959 Act can be triggered. There are two or three safeguards which involve efforts to contact owners, and so forth. The interests of the landowner are fully recognised.

My noble friend made reference to Amendment No. 29. That government amendment will have a bearing on Clause 4. If he can be patient, I will be able to explain to him why a reference in Clause 5 can have a bearing on Clause 4. I hope that he will be able to take some comfort from that.

I turn to Amendments Nos. 19 and 56. Some noble Lords have urged us to make this power expressly limited to use in the case of marauding deer only by including a specific reference to "marauding deer" in the text of the Bill. I explained in Committee that the term "marauding deer" was not included in the text of the 1959 Act because of real legal uncertainties as to what constituted "marauding" in each case. What constituted "marauding" to a farmer might be normal behaviour to a landowner or somebody with sporting rights. For example, a biologist might take a very different view as to what constituted a normal area in which deer might be established compared with a crofter.

I have received clear legal advice that to include the term "marauding" on the face of the Bill, and to try to define it in respect of range, would lead to such legal uncertainties as to tie in knots a well-intentioned future commission.

I am sympathetic to the anxieties that lie behind the amendments moved by my noble friend today and in Committee. I am conscious of the need to respond to the concern that the power should be used only where deer are causing serious damage or danger on land upon which they are not normally established, and where deer management measures are not normally taken. Such circumstances might occur while outwith the normal deer range where deer arrived suddenly in search of food in large numbers, within an enclosure from which deer are normally excluded by a deer-proof fence or where they are clearly not meant to he as in a farmer's inbye land or in a school playground. I shall therefore propose on Third Reading an amendment which, if any doubts remain among your Lordships about the effect of the provisions, should put them to rest.

The assurances that I have given on the clause on successive occasions will, if we write them into Clause 4, give comfort to my noble friend and to others.

I believe that my noble friend spoke also to Amendment No. 21. This further amendment raises the question of which land would be mentioned in a Section 6 authorisation issued by the commission.

Under Section 6(2) of the 1959 Act, where the commission is satisfied that the deer which are causing the problem are coming from particular land, the commission shall, first, make a request to any person having the right to kill deer on that land to undertake the killing of the deer. Only if that person is unable or unwilling to comply with the request may the commission issue a Section 6 authorisation to follow and kill the deer.

The protection is precisely that the authorised person can only follow and kill the deer on the land mentioned in the authorisation. Under Sections 6(5) and (6) the commission has to give notice to the owner of any land mentioned in the authorisation, or anyone likely to be on such land, of its intention to issue the authorisation. That is an additional safeguard.

With the assurance I have given about our intention to bring forward an amendment on Third Reading properly to define the deer which could be the target of the Clause 4 powers, I hope that my noble friend will be able to withdraw the amendment.

My Lords, I am grateful to hear from my noble friend that he intends to bring forward some further modification to the clause on Third Reading. The point that I put to him still stands. Although it is helpful to have the new paragraph (c) which my noble friend inserted in Committee, that the commission can only use the immediate powers of the clause when:

"none of their other powers is adequate to deal with the situation",
that does not get round the problem which I have raised of the commission saying that it does not have time to use the powers in Clause 5.

I appreciate that it is difficult to define "marauding"; but we have a number of definitions in the Bill, one of which attempts the definition of the "natural heritage". If we can have a definition, of "natural heritage" on the face of the Bill, I should have thought that we would be able to have a definition of the word "maraud".

As to Amendment No. 21, I have taken out the words that suggest the authorisation could mention almost any land, because that seems to allow the commission to authorise the deer to be killed where they are. In that case, we must be sure that they are marauding, and that they cannot be killed where they are normally established. What my noble friend has been saying is helpful and hopeful. I therefore hope that when we have our discussion we may be able to discuss what he is thinking of bringing forward on Third Reading. In the meantime, I have much pleasure in withdrawing the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved..]

moved Amendment No. 20:

Page 3, line 29, leave out ("the natural heritage generally") and insert ("enclosed land of natural heritage value").

The noble Lord said: My Lords, this group of amendments may well also become redundant in the light of what my noble friend the Minister has just said. They are an attempt to define the natural heritage within the powers of Clause 4, because although the interests which Clause 4 has been able to protect since 1959 are easy to understand—woodland, agricultural production, including any crops or foodstuffs, and injury to livestock, and so on—the definition of "natural heritage" is much more difficult to understand.

There is in the Bill now an acceptable definition of "woodland", and most of what we are talking about, certainly in the Highlands of Scotland, under the heading of natural heritage would be covered by "woodland".

It was after my noble friend the Minister was good enough to spare me a few minutes for a meeting since our Committee proceedings that I thought the definition of "natural heritage" could be more precise as to exactly what Clause 4 is aiming at. Therefore where we are invited to give the commission power over the "natural heritage generally", I have suggested:

"enclosed land of natural heritage value".

That would not be land which was necessarily enclosed against deer; it would be natural heritage which was enclosed for any purpose. However, as I say, if we can get the concept of marauding deer clearly understood within the terms of Clause 4, then these amendments become less important. I should like to hear what my noble friend has to say. I beg to move.

My Lords, I can give my noble friend a simple and short answer. It is my hope that the amendment to Clause 4 that we shall bring forward on Third Reading may well satisfy his anxieties in this area. There may well be pressures on the natural heritage outwith an enclosed area. One thinks of grouse moors, and areas which are beyond the normal fringes of deer areas; but, because of specific weather conditions, large plantings, or enclosures, the deer are pushed into areas where they do not normally roam. In such circumstances, it will be important to protect something in an emergency, even if it was not fenced because it was not normally part of a deer range.

I assure my noble friend that at the heart of Clause 4 is a proper definition of when the powers can be used. It is something that I hope to be able to deliver to noble Lords on Third Reading. I shall give my noble friend good notice of how we intend to draft the amendment.

My Lords, before the Minister sits down, perhaps I may raise a point with him that was raised in Committee. It is the question of the erection of fences. We are aware that different interests are involved. I have a brief from the RSPB. I was surprised to see that the annual mortality rate of capercaillie killed by collisions was 32 per cent. That indicates that the fencing about which we are talking is a major cause of death. Forestry Commission research information has shown that where deer culling can be sustained in sufficient intensities and over sufficiently wide areas, it is possible to establish native pinewood without deer fencing. The Minister has offered to look at this whole question and I hope that he will take cognisance of the mortality rate of some birds, particularly capercaillie, in relation to fencing.

7.30 p.m.

My Lords, with regard to the statistic of 32 per cent., I believe that the mortalities have reduced considerably because the fencing has been modified and the position of the fencing has been changed. I still believe that the figures are relatively high, but not as high as those which the noble Lord is suggesting.

My Lords, when the plantations mature, the Forestry Commission allows the fencing to fall down. The deer, naturally being forest animals, come into the forest, where they are promptly shot in large quantities by the Forestry Commission. In other words, it is shooting its neighbours' deer.

My Lords, my noble friend Lord Courtown is on the verge of giving us a lecture about when one can and cannot speak on Report. He knows a great deal more about that than I do.

All the points made by noble Lords about fences and capercaillie are taken on board. Our view is that it is not for Ministers, the Deer Commission or any other public agency to be prescriptive about where there should or should not be fences. Circumstances and conditions vary considerably in different areas. I understand that in some areas unfenced projects make a lot of sense, whereas in other areas fencing is required. However, as my noble friend Lord Peel implied, one needs the right sort of fencing to avoid mortalities. As I said, all the points made by noble Lords will be taken on board.

My Lords, I apologise to the House. It was probably my fault that the batting order got confused because I offered to withdraw from the wicket before a number of other more skilful batsmen had had their turn.

I am most grateful for what my noble friend said. All I can do at the moment is to await the outcome of what he is able to do about "marauding" and the "natural heritage" and the immediacy of the powers in Clause 4. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

moved Amendment No. 22:

Page 4, line 5, after ("instead") insert ("take and").

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 23, 27, 31, 32, 38 to 41, 49, 58, 61 to 70, 72, 73 and 76 to 78.

Noble Lords may recall that we are preparing a consolidation Bill in parallel with the programme Bill. Consolidation of all the existing legislation will undoubtedly make it more user friendly for deer managers and others who have to deal with the law on a regular basis, not least your Lordships.

In a strict consolidation exercise, the draftsman is limited in what he can do. He can modernise terms, correct obvious errors and improve layout, but he must adhere to the substance of the law as it stands. If the law is unsatisfactory or open to substantial doubt, the draftsman may simply have to reproduce those inadequacies or doubts in the consolidated Act.

The main reason for proceeding with the consolidation exercise in parallel with the programme Bill is that substantial amendments to clarify the law can be incorporated in the programme Bill and then consolidated. So far, the amendments I have proposed that have arisen from the consolidation process have all been relatively minor.

There is, however, one area of substantial doubt and uncertainty in the present legislation which has been brought to my attention. We can now take the opportunity to clear this up. This will, however, go beyond the scope of what is allowed on consolidation and will involve amendments in the programme Bill to clarify the law based on the Government's policy.

The difficulty centres around the use of the word "take" which appears throughout the legislation usually in the phrase "take or kill". It may seem obvious at first reading that the term "take" offers some alternative to killing; for example, the taking of deer alive. However, when one looks in detail at the Act, this is not always so as the law stands at present.

However, we know that from time to time persons who have the right to kill deer take the deer alive instead, usually with a view to selling the deer on. In terms of our policy, provided the animals are humanely treated, there seems to be no reason to object to this. The effect as regards, for example, damage to crops is the same—the deer are removed and prevented from causing further damage.

Moreover, we know that the courts have interpreted the term "take" as meaning "take alive" with particular reference to Section 22 which deals with poaching. Under the circumstances, it is clear we will lose something from the legislation if we simply delete all uses of the word "take".

I am therefore proposing that we standardise the language across the Act. In general, we will refer to rights to "take of kill" and taking will mean "taking alive". This will be consistent with the interpretation of the courts and with current practice. I beg to move.

My Lords, I merely comment on this group of amendments that the taking of a live deer is not at all the same thing as shooting it dead with a modern rifle, when one bears in mind the welfare of the deer. Deer are extremely difficult to dart into a state of unconsciousness and when they are taken in the least bit violently, until they can be enclosed in the dark, they can he very uncomfortable and distressed, to the extent that they can die of distress quite easily.

Therefore, all I would say to my noble friend is that, although I am sure that I am not able to stand up to the complexity of the draftsman and the consolidation of the Bill and this long string of amendments, the taking of wild deer is a matter which must be considered with great caution.

My Lords, I assure my noble friend that that is the intention of our policy. The animals must be humanely treated. It may well be that other deer management procedures not unrelated to the taking of live deer will be discussed later on other amendments and I shall be able to reassure him further on that point. I commend the amendment.

On Question, amendment agreed to.

moved Amendment No. 23:

Page 4, leave out lines 8 to 10 and insert—
(""(9) Where any deer has been killed or taken and removed from land under an authorisation granted by the Commission under this section the Commission shall have power to dispose of it by sale or otherwise.".").

On Question, amendment agreed to.

moved Amendment No. 24:

Page 4, line 10, at end insert—
("(10) This section may not be used by the Commission in any attempt to enhance the natural heritage without the agreement of the landowners in question.".").

The noble Lord said: My Lords, again Amendment No. 24 may be rendered somewhat redundant if my noble friend can deliver on the purposes of Clause 4, especially as regards marauding deer and the natural heritage.

The object of the exercise in Amendment No. 24 is to make sure that the powers of Clause 4 cannot be used to enhance the natural heritage without the agreement of the landowners in question. But I think that I should say no more about it now because I look forward with hope to my noble friend's Amendment No. 25 and, further, his Amendment No. 29 which appears to do for Clause 5 what this amendment is designed to do for Clause 4. I beg to move.

My Lords, in responding to Amendment No. 24 moved by my noble friend Lord Pearson of Rannoch, I shall speak to government Amendments Nos. 25 and 29.

I have made it clear in presenting the Bill that our intention is that the compulsory powers of the commission in Clause 4 and the latter part of Clause 5 could be used only as a last resort to protect the existing natural heritage against serious damage and that they could not be used to enhance the natural heritage; that is to say, to change its fundamental character.

Following our discussion at Committee stage on the question of whether enhancement of the natural heritage could be pursued under the terms of the Bill, I asked my legal advisers to check again to ensure that the provisions of the Bill as they stand meet our intention. They have advised me that that is indeed the effect of the provisions as they stand.

Moreover, they have raised some doubt as to whether the provisions of revised Section 7(1) in Clause 5 (on control agreements) could be used to bring about enhancement if that resulted in a fundamental change in the character of the land—such as, for example, upgrading moorland or scrubland.

It was always our intention to allow such enhancement if the control measures required could proceed by voluntary agreement among the parties concerned. At least one of the existing voluntary control schemes being promoted by the commission is concerned, among other things, with the re-establishment of woodland. It seems to me important that, for the avoidance of doubt, we should ensure that such action can proceed where it is considered appropriate by the commission; and, indeed, where it is welcomed by the parties involved.

As a consequence I am introducing Amendment No. 25 to make it clear that enhancement of this sort can proceed under Section 7(1) of the 1959 Act. The effect of the amendment will also be to reinforce the point that such enhancement cannot proceed under Clause 4 and the compulsory powers in Clause 5. As this amendment would not apply to those provisions, the legal effect is to create a clear implication that such fundamental change in the character of the land is excluded from them; in other words, it is excluded from Clause 4 and from the control orders in Clause 5.

Amendment No. 29 delivers part of that purpose. It is necessary because the wording of Section 7(6) in Clause 5 contains specific mention of "control agreements" as preconditions for moving to control schemes. The effect of the second amendment will be to make it clear that control agreements which have enhancement as their object will not be capable of being transformed into control schemes.

There is a well-established legal principle that when a qualifying provision is mentioned in one section, but not in another, it does not apply to the section where it is not mentioned. Consequently, there is no need to make any reference to Section 6 of the principal Act because the exclusion is already made. I hope, therefore, that my noble friend will feel able to withdraw Amendment No. 24 since the Government Amendments Nos. 25 and 29 will, I believe, answer the concerns expressed by him and, indeed, by the noble Lady, Lady Saltoun.

My Lords, I am grateful to my noble friend the Minister for that response. From what I heard, I believe that the amendments do answer my concerns. However, if the effect of Amendment No. 29 in fact bites into Clause 4 of the Bill as proposed by Amendment No. 24, I do not really see why it should not also be put on the face of the Bill. But, that is something that my noble friend and I can perhaps discuss. In the meantime, I am happy to accept the legal position that my noble friend put forward.

As I understand it, the effect of Amendment No. 29 would not allow the commission to enhance the natural heritage value by using the control scheme mechanism which is set out at the end of Clause 5; in other words, any such enhancement would have to come under a management agreement of some kind, presumably with Scottish Natural Heritage or, perhaps, the Deer Commission. I do not know. In any case, I believe that the following amendments will probably clarify the question of compensation and any payment for the enhancement and the change of use of the land in question. In view of the assurances made by my noble friend, I am happy to withdraw Amendment No. 24.

Amendment, by leave, withdrawn.

7.45 p.m.

Clause 5 [ Control agreements and control schemes]:

moved Amendment No. 25:

Page 4, line 34, at end insert—
("( ) For the purposes of subsection (1) above "the natural heritage" includes any alteration or enhancement of the natural heritage which is taking place, or is proposed to take place, either naturally or as a result of a change of use determined by the owner or occupier of the land in question; and "damage" shall be construed accordingly.").

On Question, amendment agreed to.

My Lords, before I call Amendment No. 26, I should point out to your Lordships that there is an error in the amendment as set out in the Marshalled List in that the word "occupies" should be "occupiers".

moved Amendment No. 26:

Page 5, line 1, after ("measures;") insert—
("(cc) the compensation payable to the owners and or occupiers of the land in question;").

The noble Lord said: My Lords, the amendment opens up for the first time the question of any compensation that might be paid when the provisions of Clause 5 are activated. I should point out that we have not tabled amendments for compensation for when the provisions of Clause 4 are activated because we assume that we will get those provisions right, and that they will not be able to be misused against deer which are not really marauding and damaging the natural heritage.

Therefore, so far as I can see, the question of compensation or payment in return for a management agreement arises at present only in regard to Clause 5. Indeed, as I said when my noble friend moved the previous amendment, it seems to me that any management agreement would probably be struck with Scottish Natural Heritage and that a payment in return for a change of management, such as the removal of deer forest status from an area of ground, would be the subject of such a management agreement.

However, I am not clear as to whether it is proposed that the Red Deer Commission might have the power to make such an agreement. My understanding at the moment is that its budget would probably not stretch to such largesse. I believe it is really Scottish Natural Heritage which one would see coming into play here. I tabled the amendments to find out from my noble friend the Minister whether or not the Government propose that any enhancement of the natural heritage under the Bill will be the subject of a management agreement and subject to compensation. I beg to move.

My Lords, I am glad that my noble friend has moved the amendment because I believe it raises a number of rather important points. I am quite happy to admit that there are certain aspects of the Bill with which I am not yet fully familiar. However, if I fail to grasp an important point, I am sure that my noble friend on the Front Bench will put me right. It seems to me to be rather unjust at the very least if the Red Deer Commission is to have such powers to remove deer from a given piece of land without providing financial compensation to the owner. Indeed it is rather odd and would set up a precedent which I find rather disturbing. I accept that there are certain procedures through which the commission would have to go in order to exercise such powers; but, nevertheless, my interpretation of the Bill is that I believe such a position could arise.

As has already been identified, red deer are, for all intents and purposes, a commercial crop. Red deer are not the only creatures which overgraze. We have plenty of examples in both England and Scotland where sheep have created considerable difficulties through overgrazing. But I know of no provisions where the Ministry can remove sheep. I realise that the Ministry has powers of cross-compliance to remove subsidies in cases where sheep overgraze, but there are no subsidies attached to deer.

Non-compensation appears to go against the spirit of the Wildlife and Countryside Act 1981. As I am sure noble Lords will know, under that legislation—it has worked extremely well—the old Nature Conservancy Council, now the Scottish Natural Heritage, would be obliged to enter into a management agreement with an owner or occupier if it wishes to see the habitat restored. Unless I have misinterpreted this section of the Bill, it seems to me that the Red Deer Commission would have powers to enter land to remove deer without compensating the landowner.

If that is so, it is clearly a dangerous precedent. One could envisage a situation where Scottish Natural Heritage might say to the Red Deer Commission, "There is a problem of acute overgrazing on this land. You have the powers to remove and not compensate. We have not. Will you do the job for us?" If that is right—I look forward to hearing what my noble friend says—we have a very real problem.

The financial importance of deer has already been touched upon. In many parts of the uplands of Scotland, the grouse population has declined to a point where a proper level of management cannot be sustained. The deer now provide such management. If the deer are to be threatened through removal without compensation, that management tier, which in many cases hangs on by its fingernails, may decline even faster. Many of the processes of management which are so important to deer—I refer to heather burning, and so on—may decline further. I look forward to hearing what my noble friend says on an important matter.

My Lords, when speaking of enhancing the habitat, I daresay that we are thinking of re-establishing the Caledonian Forest which our ancestors destroyed. That is a laudable aim. To accomplish that, the deer should be fenced out rather than shot out of the area. Deer would have to continue to be shot out of the area. They would come naturally into that area because nature abhors a vacuum. The area to be enhanced would have to be heavily fenced and looked after otherwise it would just be scrub and couch grass. The area would have to be properly planted and managed.

My Lords, perhaps I may say a few words about deer fencing and capercaillie. The noble Lord, Lord Carmichael of Kelvingrove, said earlier that there had been problems with capercaillie flying into deer fences and being killed. Much depends on two things. The first is where you put the deer fences. If you put them straight through or alongside the leks, the capercaillie will fly into them. If chicken wire fences are used, the chances are that the capercaillie will be temporarily stunned but they will not be killed. On the other hand, if you use chain lock fences, the capercaillie will be killed because for them it is exactly like flying into a brick wall.

In a number of places, the reason that capercaillie have declined and vanished is nothing to do with fences but with vermin, and foxes in particular.

My Lords, perhaps I may briefly support my noble friend Lord Pearson and say how much I endorse what my noble friend Lord Peel said about the importance of compensation.

As I am sure my noble friend on the Front Bench is aware, the economy of the upper parts of Scotland which my noble friend described is never as secure as it should be. There are many reasons for that, some of which my noble friend touched on. However, if what appears to be possible under this Bill were to take place in the way described, a large economic burden would fall on the shoulders of those who would otherwise have the benefit of the crop, as my noble friend Lord Peel described it. Therefore, it is essential that my noble friend clearly addresses the issue; otherwise the already fairly difficult situation could be made almost intolerable.

My Lords, Amendments Nos. 26 and 28 have generated some important and useful debates. I listened carefully to the points made. I fully understand the issues which noble Lords have illustrated.

Perhaps I may stress two or three points before dealing with the text of the amendments. First, there is a clear distinction—it is made clearer with government Amendments Nos. 25 and 29—between enhancement and protection against serious damage. It is important also to point out that we are excluding enhancement as an objective from any of the compulsory measures available to the commission. They cannot be used to enhance the habitat. The management agreements flagged in the Wildlife and Countryside Act 1981 deal with enhancement and improvement. That is where compensation is quite rightly paid to owners.

Secondly, I promised to bring forward an amendment at Third Reading to make it obvious that Clause 4 powers are activated only in circumstances where the deer involved are out of control, are not normally resident on that ground and are not subject normally to deer management measures. I hope to establish beyond doubt when those Clause 4 powers can be used. The distinction between serious damage and enhancement is critical in understanding the issue of compensation. In that sense, the approach taken by the noble Lord, Lord Pearson of Rannoch, is in some senses against the basic principles on which the Deer Commission operates and on which the Bill is based.

It has always been clearly established that both the benefits and the costs of deer management should fall on those with the right to shoot deer on their land. The Deer Commission is not a grant-giving body, and nothing in the Bill or in these amendments would change that.

In preparing the Bill, my officials met representatives of the Scottish Landowners' Federation and the Association of Deer Management Groups to clarify the position on compensation. Those bodies accepted that compensation for the simple act of protecting existing features against serious deer damage was not appropriate. The distinction was made then and we will continue to reinforce it, that protecting against serious damage is not and cannot be an excuse for projects which are designed to enhance the landscape or change land use.

The SLF and the ADMG also accepted that compensation was not suitable for a control agreement where deer control measures are agreed between the relevant parties. However, they believed that if enhancement of the natural heritage was to be the result of compulsory deer control measures, then compensation should be payable. We have made it clear in Amendments Nos. 25 and 29 that such enhancement is not possible under compulsory measures, under either Section 6 or Section 7 of the 1959 Act. Therefore, there is no case for compensation to be paid in that way.

We wish to see enhancement of the natural heritage and woodland in certain areas but only with the agreement of the parties concerned. SNH and the Forestry Authority are willing to support enhancement measures through management agreements and forestry measures such as the new native pinewoods scheme. The Deer Commission will be able to use its powers to support such measures only by agreement with the landowners concerned.

In preparing the Bill, my department prepared a compliance costs assessment in keeping with the Government's deregulation initiative. That was prepared in consultation with deer managers and their representatives. It showed that for the most part the Bill would impose no extra costs, but in exceptional circumstances, under control schemes, estates might be faced with extra costs of up to £11,000 over three years. Any impact on the capital value of estates was omitted from the calculations, with the agreement of the SLF and the ADMG, on the grounds that the simple act of protection should not affect the capital value of the estate.

The distinction to which I draw noble Lords' attention is the fact that there is a clear difference between protection against serious damage and enhancement. Enhancement through the voluntary control agreements will often attract compensation or the funds which act as an incentive and which can be paid by the Forestry Commission or Scottish Natural Heritage.

I shall be speaking to my noble friend Lord Pearson before Third Reading about various matters and I suggest that we put this on the agenda so that if there is serious doubt remaining on where and when money is made available, we can clear it up in sufficient time to address the issue at Third Reading.

8 p.m.

My Lords, with the leave of the House and before my noble friend sits down, is he able to answer the question of who will define "serious deer damage"? Is that a task for the Red Deer Commission itself or for Scottish Natural Heritage?

My Lords, the definition would be primarily for the commission, in the light of the balance of interests on the commission. I hope that by the time the Bill leaves this House the commission will command your Lordships' confidence. It may wish to take on board advice, possibly from Scottish Natural Heritage. A decision has been made that Scottish Natural Heritage should not be the statutory adviser to the commission, in case there were circumstances where SNH was not the appropriate body to use for such advice.

My Lords, I am grateful to my noble friend. On his last point, I repeat that the difference between "damage" and "serious damage" must be in the eye of the beholder. On this occasion, the beholder will be the Red Deer Commission. I was also grateful to hear my noble friend say that the capital value of the estates in question would not be put at risk by this clause without compensation being agreed, if not by the Red Deer Commission then by SNH or the Forestry Authority.

My Lords, with the leave of the House, I should explain that the SLF and the ADMG agreed that the compulsory powers which might be employed under Clause 4 or the end of Clause 5 simply protect that land against serious damage and should not affect the capital value of the estate. The way my noble friend summarised what I said was different.

My Lords, I hope that my noble friend does not think I am trying to pick him up on what he says. I would certainly not accuse him of trying to pick me up. I accept that often deer can be reduced on an area, to the benefit of the interests mentioned in the Bill. I accept that the capital value of the estate may not be affected because if there are too many deer and you shoot quite a lot of them, their breeding rate goes up and quality can improve. I accept that. However, I have to disagree with the Association of Deer Management Groups and the Scottish Landowners' Federation if the clause could be used in such a way as to reduce the deer population to a level where the land in question no longer had the sporting value of the deer forest or whatever it was before. In those circumstances, I imagine that the matter of a management agreement of some kind would come in with Scottish Natural Heritage.

My Lords, with the leave of the House, if what had been a deer estate supporting a certain established number of deer were transformed through the compulsory powers to a different type of estate altogether, supporting half the number of deer, I do not believe that the means for accomplishing that could possibly be the compulsory powers in the Bill, from the way they are phrased. The compulsory powers cannot be employed to change an existing situation or continuing damage; they can be employed to prevent sudden serious damage.

My Lords, the word "sudden" is very important. On that basis, I am happy to accept what my noble friend said. I and, I am sure, other noble Lords will read it carefully in Hansard. I am grateful to my noble friends Lord Peel and Lord Glenarthur for supporting me. I am particularly grateful to my noble friend Lord Peel for bringing sheep back into our discussions, even briefly. I should confirm that in the regions of Tayside, Highland and Angus, at the moment there are 3 million heavily subsidised sheep eating at least six times as much as the 250,000 red deer which are principally the object of our discussion on this clause. With that comment, which is perhaps slightly off the centre of the amendments, I beg leave to withdraw Amendment No. 26.

Amendment, by leave, withdrawn.

moved Amendment No. 27:

Page 5, line 16, after first ("or") insert ("taken and").

The noble Earl said: My Lords, I spoke to this amendment when I moved Amendment No. 22. I beg to move.

On Question, amendment agreed to.

[ Amendment No. 28 not moved.]

moved Amendment No. 29:

Page 6, line 3, at end insert—
("() Subsection (6) above does not apply in relation to any control agreement proposed or entered into for the purpose of altering or enhancing the natural heritage.").

The noble Earl said: My Lords, I spoke to this important amendment when I moved Amendment No. 25. I beg to move.

On Question, amendment agreed to.

moved Amendment No. 30:

After Clause 5, insert the following new clause—
(" . Where there is exclusion of deer from their natural habitat due to enclosure of land previously unenclosed, the owner or occupier of that land shall take action to reduce the deer population accordingly.").

The noble Lord said: My Lords, the principle of this amendment was introduced in Committee on 6th March under Amendment No. 37. It received considerable support and sympathy. My initial concern was related to the increasing activities of forestry, but I feel that it is a principle that should apply across all instances where there is exclusion of deer from their natural habitat. I understand that the Government seek to establish powers for the Forestry Commission to refuse public support until such action is taken. While that power would be welcome, I feel that it is more appropriate to seek inclusion of this principle within the Bill. One can envisage other scenarios in the future such as super-quarries—which are certainly a topical issue in certain parts of northern Scotland—which would deprive deer of their habitat but where the Forestry Commission would have no jurisdiction. Thus, it is important to safeguard the natural heritage, deer welfare and agricultural interests. If the Forestry Commission has no power to do that, we should include a provision in deer legislation.

Furthermore, given that deer roam from mountain to glen there are situations where the enclosure of land will not immediately exclude deer, as they are not there at that particular time. However, that does not mean that there will not be an imbalance and potential pressure on grazing and welfare problems at a later stage in the year, particularly in the winter. By placing this amendment within Clause 5 on control agreements, it would be possible to put the onus on the commission to assess the impact of the enclosure on deer populations. Further, it places an onus on it to take forward a control agreement with other parties to reduce the deer population accordingly. I beg to move.

My Lords, I should just briefly like to support this amendment, as I did in our Committee proceedings. It seems absolutely reasonable that if land that was open to the deer as their natural habitat becomes enclosed for other purposes, whoever is in charge of that operation ought to have the responsibility of reducing the number of deer.

I feel sure that, as the deer management groups and the Deer Commission become ever more professional in their knowledge of the numbers of deer that we have and where they move—and, as I hope, if my tagging amendment is accepted later on about the numbers of deer that we are actually killing every year—they should be able to form a good judgment as to the numbers of deer which ought to be excluded in the circumstances envisaged by this amendment.

I would just mention, too, that one of the problems in recent years of the deer population expanding is precisely that large areas have been enclosed for forestry. The deer on the whole have been driven out and have sometimes gone on to do damage elsewhere.

That is a situation which is now coming under control, and I feel sure that this amendment is in the spirit of that improving position. I support the amendment.

My Lords, I am grateful to the noble Lord, Lord Carmichael, for moving this amendment, the principle of which we fully support, as I stated in Committee.

It is a truism of the problems that face deer managers in Scotland today that the range over which deer are allowed is ever changing. I remember it was a point made by my noble friend Lord Woolton at Second Reading.

Our hope was to find the easiest way of achieving the objective of this amendment. Our position is that there is no need to change the legislation in order to achieve what the noble Lord's amendment seeks. We have decided that the Forestry Authority, on deer culling measures required before enclosure, will henceforth adapt its procedures to make compliance with Deer Commission advice a precondition of approval of woodland grant scheme applications. Such a change can be made by administrative means, and no amendment to this Bill is therefore required.

Applicants will be expected to carry out all pre-enclosure control measures prescribed by the Deer Commission on their land before an application is finally approved. In order to match the migratory patterns of deer, control measures required should be taken at the time of year when the deer are present on the land in question.

If necessary, the Deer Commission may be prepared to promote a voluntary control agreement, as provided for by Clause 5 of the Bill, to allow action to be taken in the most effective manner and, if necessary, provide for the interests of neighbouring land managers to be taken into account.

The effects of this change may, in certain circumstances, mean that woodland establishment is delayed by a short period to allow deer control to proceed. However, such minor delays as may occur will be more than compensated for by the confidence this change will create that the knock-on effects of enclosure have been anticipated before the work takes place; and that as a result no restorative action needs to be taken subsequently when the deer have been displaced.

I am grateful that, both at the Committee stage and today, the noble Lord, Lord Carmichael, raised this issue. It has prompted us to amend the arrangements we have for woodland grant schemes where this issue is relevant.

If substantial enclosure was taking place for a reason other than forestry, we would expect the Deer Commission to use its voluntary control agreement provisions and powers to promote such schemes to make similar arrangements to those I just outlined as being attached to woodland grant scheme applications.

8.15 p.m.

My Lords, I am most grateful to the Minister. I am glad he included in the latter part of his remarks the reference that I had made to quarrying in parts of the Highlands. It appears that he has gone a long way to meet the desires of the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Deer killed under authority of Commission]:

moved Amendments Nos. 31 and 32:

Page 6, line 12, leave out ("the carcases of").
Page 6, line 13, after ("deer") insert ("taken or").

The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 22. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 7 [ Close seasons]:

moved Amendment No. 33:

Page 6, line 41, after ("person") insert ("knowingly").

The noble Lord said: My Lords, I am embarrassed to inform the House that my noble friend Lord Glenarthur has just pointed out to me that perhaps this amendment is superfluous. It is designed to exonerate anyone who shoots a deer of the wrong sex for the time of year in question—in other words, out of season—from the penalties which are otherwise imposed. This, unfortunately, can be possible, usually by shooting a young stag without horns when one is trying to shoot hinds. I am told, although it is not within my experience, that people have even been known to shoot a hind when in fact they were supposed to be aiming at a stag. I hope that is an extremely rare event all over Scotland, but I believe it has been known. That is what this amendment was designed to do. But if my noble friend the Minister is going to tell me that it is irrelevant because the word "wilfully" exists in paragraph (b) of this clause, I accept that and apologise for wasting the time of the House.

My Lords, I do not think that I can add to my noble friend's remarks, except to say that there is a real problem. Unfortunately, this sort of thing can happen. I have certainly known of it happening. However, I see that in subsection (1)(b) one has to,

"wilfully kill or injure any deer".
Therefore, if any accidental contravention took place, presumably that would be a reasonable excuse.

My Lords, I am familiar with the circumstances that both noble Lords describe. Indeed, over the years I have witnessed the mistakes that can happen on the hills, especially in poor visibility.

The problem I have with this amendment is more basic than that which both noble Lords mentioned. It is that the amendment goes against the basic principle of the criminal law; namely, that a person should be assumed to know what the law is. We cannot provide someone with a defence that they are ignorant of the law.

One hopes, in this day and age, that enforcement of the law is proportionate to the circumstances in which the enforcer finds the person who may have transgressed. Therefore, I hope that my noble friend is not too worried at the possible consequences of the circumstances he describes.

My Lords, I accept what my noble friend has said, but I disagree with him on one point. I do not think that one can rely on law enforcement and other agencies not, in some cases, to exaggerate the law. If one were the owner of an abattoir one might not feel exactly like that as regards the way in which the meat hygiene regulations have been enforced. However, that is not the purpose of this amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

moved Amendment No. 34:

After Clause 7, insert the following new clause—
(". For section 25 of the principal Act (unlawful possession of deer and firearms) there shall be substituted the following sections—
"Illegal possession of deer.
25.—(1) A person who is in possession of a deer or of firearms or ammunition in circumstances which make it reasonable to infer that—
  • (a) he obtained the deer by committing a relevant offence; or
  • (b) he had used the firearm or ammunition for the purpose of committing a relevant offence; or
  • (c) he knew that—
  • (i) a relevant offence had been committed in relation to the deer; or
  • (ii) the firearm or ammunition had been used for the purpose of committing a relevant offence,
  • shall be guilty of an offence under this section and liable on summary conviction to a fine not exceeding level 4 on the standard scale or to imprisonment for a period not exceeding 3 months or both, and to forfeiture of any deer found in his possession.
    (2) It shall be a defence in proceedings for an offence under this section for the accused to show that no relevant offence had been committed, or that he had no reason to believe that such an offence had been committed.
    (3) For the purposes of this section a "relevant offence" is an offence under any of sections 21, 22, 23, 23A or 24 of this Act.
    (4) A person shall not be guilty of an offence under this section in respect of anything done in good faith, including conduct which would otherwise constitute a relevant offence in relation to any deer, where what is done is done for purposes connected with the prevention or detection of crime or the investigation or treatment of disease.
    (5) It shall be lawful to convict a person charged under this section on the evidence of one witness.
    Power of court in trial in one offence to convict of another.
    25AA. If, upon a trial for an offence under any of sections 21, 22, 23, 23A, 24 or 25 of this Act, or any rule of law relating to reset, the court is not satisfied that the accused is guilty of the offence charged but is guilty of another of those offences, it may acquit him of the offence charged but find him guilty of the other offence and he shall then be liable to the same punishment as for that other offence.".").

    The noble Earl said: My Lords, I appreciate many noble Lords are concerned about poaching and the illegal killing of deer. It is with that in mind that I am now proposing to bring forward a new offence to tighten the laws on poaching.

    Section 25 of the 1959 Act, as it was originally understood, allowed action to be taken against a person found in the possession of deer, firearms or ammunition where there were reasonable grounds for suspecting that the deer had been taken or killed unlawfully. The section was intended to address the difficulty of catching poachers at work. As an exception to normal Scottish criminal law, only one witness is needed, recognising that a policeman or gamekeeper in remote areas is likely to be unaccompanied.

    However, as a result of a ruling in the High Court appeal case in 1993 an accused can only be convicted under Section 25 if it is proved that he himself has committed the original poaching offence. This has consequently made it very difficult to obtain convictions under Section 25.

    To restore the law to the position as it was understood before 1993, I am proposing to introduce a revised Section 25 into the 1959 Act. In addition, a new section, also based on the salmon legislation, would allow conviction where the court was not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence led that he is guilty of another offence relating to the illegal taking or killing of deer.

    Amendments Nos. 51 and 71 are consequential amendments and therefore I beg to move Amendment No. 34.

    On Question, amendment agreed to.

    Clause 8 [ Authorisation by Commission of certain acts]:

    moved an Amendment No. 35:

    Page 7, line 11, after ("authorise") insert ("any").

    The noble Lady said: My Lords, I read carefully the noble Earl's answer to the various amendments that I moved at Committee stage. I note that his Amendments Nos. 42 and 44 make my Amendments Nos. 43 and 45 unnecessary. I prefer his amendments as they go further than mine. I was trying to compromise with the least I felt that might be acceptable to the Government, whereas the noble Earl is under no such constraints. Therefore I shall not move my amendments when the time comes.

    Amendments Nos. 35, 36, 37, 46 and 47 would not affect the workload of the hardworking commission, which I fear I maligned disgracefully at Committee stage, when I accused them of working a five-day week from 9 to 5, which is not at all the case. I understand they work a seven-day week and often all the hours there are. The amendments would give the commission the option of authorising the owner, rather than the occupier, should it appear to them sensible to do so, or possibly at the occupier's suggestion. I think this might often be the best course where red deer are concerned and an experienced stalker is at hand. I appreciate that where roe deer are concerned the situation would often be very different. I still consider that it is quite inequitable that an owner, or his representative, having a prior interest in the deer, and a major interest in the land, should not be eligible for such an authorisation.

    The noble Earl said at Committee stage that he was going to give the matter of owner versus occupier, with regard to out of season shooting, further consideration. I wonder if he has been able to do so and has reached any conclusions on the question. I beg to move.

    My Lords, in Committee a number of amendments were moved as regards this important area, and I am grateful to the noble Lady, Lady Saltoun of Abernethy, for coming back to the subject. I hope that in my explanation of the provisions of Section 6 of the 1959 Act, I demonstrated that, as far as this particular power is concerned, that point has already been addressed. The commission must first attempt to contact any person with the right to kill deer on the land from which the deer are coming and request that he take the necessary action. Only if such a request fails can the commission issue such an authorisation under the section. The commission must notify its intention to issue an authorisation to the owner of any land mentioned in it.

    I undertook to consider how best to address the notification of the owner in the other cases of commission authorisation: night shooting, use of vehicles, and out of season shooting. As I explained previously, I am reluctant to create additional administrative burdens on the hard worked commission, however I accept the desirability of keeping the owner of the land informed.

    To that end, I intend that the commission should revise its procedures on the granting of authorisations. Under the new procedures, the occupier will be required to notify the owner before applying for an authorisation. The occupier will certify on his application form that this has been done. This should achieve the desired end without creating additional work for the commission. It is not envisaged that this procedure will detract materially from the occupier's rights.

    I undertook to consider all the other aspects of this subject, and noble Lords will appreciate that the Bill as drafted allows authorisations for these activities to be issued to any fit and competent person nominated in writing by the occupier. Where the owner or his agent or employee has the consent of the occupier, there seems to be no reason why he should not be able to carry out the work.

    The priority of the occupier's interest is a standard theme running through the legislation at present, for example, Section 33(3)—out of season shooting on agricultural land and enclosed woodland—and Section 33(4) and (4A)—the existing night shooting provision. This is a feature of the legislation which I am reluctant to move away from without good reason, but I believe the very sensible adjustments made to procedures prior to authorisations will achieve much of what has concerned the noble Lady and others.

    On night shooting there is also the serious concern that we have about public safety if more than one person has direct access to the commission in order to apply for such authorisation.

    Turning to Amendments Nos. 42, 43, 44 and 45, it seems to me that the driving of deer for deer management purposes, is more likely to be undertaken by an owner, or group of owners, than by an occupier. The owner is normally the person with the right to take or kill deer and consequently is responsible for the overall management of the deer. For this reason, I am moving an amendment to revise this provision accordingly with the owner or his nominee being the person to whom authorisation would or could be given. As is the principle with other authorisations, the deer commission will expect an applicant to have notified the occupier, who would need to be aware for safety reasons that such work was to go ahead on his land.

    I am grateful to the noble Lady for focusing us on this issue. We have, I hope, both on the face of the Bill and away from the face of the Bill made some useful improvements.

    I now turn to Amendments Nos. 46 and 47. Noble Lords will note that authorised out of season shooting to protect unenclosed woodland or the natural heritage, all in the interests of public safety, has also been drafted so as to be a last resort power. In most cases I would expect the person actively managing the land in question to have the prime interest in the state of the flora and fauna and the woodland. Nevertheless, I recognise that there may be occasions when the owner may have the beneficial interests in the feature in question rather than the occupier. Consequently, I am prepared to introduce an amendment at Third Reading to allow either the occupier or the owner or their respective nominees to be authorised.

    In seeking an authorisation, the applicant will be expected to notify the respective owner or occupier before submitting the formal application. That is primarily driven by safety. On the basis of amendments that the Government are moving and hope to move, I hope that the noble Lady will feel able to withdraw her amendment.

    My Lords, I think I am quite happy with that explanation. I shall read very carefully what the noble Earl said and discuss the matter with my friends. Possibly, we could talk about it before Third Reading. Meanwhile, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [Amendments Nos. 36 and 37 not moved.]

    8.30 p.m.

    moved Amendment No. 38:

    Page 7, line 12, leave out ("shoot") and insert ("take or kill").

    The noble Earl said: My Lords, I spoke to Amendments Nos. 38 to 41 when moving Amendment No. 22. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 39:

    Page 7, line 12, at end insert (", and to sell or otherwise dispose of,").

    On Question, amendment agreed to.

    moved Amendments Nos. 40 and 41:

    Page 7, line 16, leave out ("shooting") and insert ("taking or killing").
    Page 7, line 19, leave out ("method") and insert ("means").

    On Question, amendments agreed to.

    moved Amendment No. 42:

    Page 7, line 22, leave out from beginning to ("subject") in line 23.

    The noble Earl said: My Lords, I have just spoken to this amendment. I beg to move.

    On Question, amendment agreed to.

    [ Amendment No. 43 not moved.]

    moved Amendment No. 44:

    Page 7, line 25, leave out ("occupier") and insert ("owner").

    The noble Earl said: My Lords, I spoke to this amendment when I moved Amendment No. 35. I beg to move.

    On Question, amendment agreed to.

    [ Amendments Nos. 45 to 48 not moved.]

    moved Amendment No. 49:

    Page 8, line 2, leave out ("method") and insert ("means").

    The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 21. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 50:

    After Clause 8, insert the following new clause—
    ("After section 25F of the principal Act there shall be inserted the following section—
    "Carcass tagging.
    25G.—(1) For the purpose of monitoring the quality and source of venison sold in Scotland the Secretary of State may by regulations made by order subject to an approval by resolution of both Houses of Parliament introduce a scheme to make provision for the identification of all deer carcasses sold within Scotland ("the scheme"), as may from time to time be defined in the regulations.
    (2) The scheme shall require any such carcass sold to bear a tag in a form approved and issued by the Commission and bearing an individual mark or number for each carcass, identifying the producer, the year of issue and the carcass number.
    (3) It shall be a requirement of the scheme that any person requiring to sell a deer carcass shall obtain in advance from the Commission the relevant tags and shall affix them to any carcass sold in such manner as may be specified.
    (4) At the expiry of the year to which any unused tag relates, the producer or dealer to whom it was issued shall return the same to the Commission.
    (5) It shall be an offence for any person to sell, offer or expose for sale or to receive or to have in his possession, transport or cause to be transported for the purpose of sale on any premises any carcass not bearing a tag in such form as may be specified by the scheme.
    (6) A person who is guilty of an offence under subsection (5) above shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.".").

    The noble Lord said: My Lords, this amendment proposes to introduce a system of tagging carcasses, subject to an order made at some future date by the Secretary of State. I emphasise that it is in that sense only an enabling measure. The latest version of the amendment makes those regulations subject to approval by resolution of both Houses of Parliament to introduce the scheme in question.

    The amendment has also been slightly revised to make clear that the clause would apply only to carcasses. There would not be any question of various other parts of the deer having to be tagged. The advantage of the Secretary of State bringing in this system by regulations to identify such deer carcasses sold within Scotland as may from time to time be defined in those regulations is that it could start slowly. We should not have to have a system under which every deer in Scotland, including roe deer, would have to be tagged from the start. It would enable the scheme to start slowly, perhaps with red deer.

    There has been strong support from all the major dealers in venison in Scotland; and even, I see, a large dealer in England has written to my noble friend the Minister saying that he feels that the scheme ought to apply in England. He was good enough to send me a copy. At Committee stage my noble friend said that he felt that such a scheme would be better introduced through a voluntary system rather than through an eventual statutory system. The problem with that approach is that a voluntary system would not cover those deer which are not regularly or properly in the system; in other words, it would not cover poached deer.

    I do not in the least make a pitch for this new clause as a weapon to be used against poaching. However, with the poaching problem comes the problem of quality. I think I am right in saying that something like 15 per cent. of hinds which do not appear to have gone through estate hooks turn up in dealers' premises. It may be that a certain percentage, perhaps half of that figure, is given away locally or eaten by the estate in question. But it is perfectly clear that there is a substantial leakage in the system at the moment. That has an effect on the quality and traceability of the venison in question.

    There is also the problem that at the moment we do not know how many deer are shot. I have made that point before but it is worth emphasising. If we are to have proper deer management in future in Scotland, we must know how many of them there are and how many are shot. A statutory tagging system would go a long way to achieving that. It would not perhaps be completely watertight, but it would be very much better than the system that we have at the moment.

    We have many years to go with the Act. I do know how many years it is envisaged that it will last before it is changed—perhaps 25 years—and we may all come to realise that we need such a system in the future. It seems to me shortsighted not to have at least the very simple enabling power, subject to regulations, which are in turn subject to approval by resolution of both Houses of Parliament now. Therefore I continue to support this concept. I beg to move.

    My Lords, as I said at Committee, although this amendment would introduce a number of complexities, we should miss a trick if we allow this piece of legislation to go onto the statute book without it encompassing the measure that my noble friend described. I said in Committee that this was an issue looked at in 1982 for the earlier Deer (Amendment) (Scotland) Bill.

    A number of difficulties were identified at that stage but there seemed to be a very strong body of opinion—certainly it came from the venison dealers to which my noble friend Lord Pearson referred as well as from others—that such a scheme was highly desirable. Part of that concern at any rate addressed the matter of poaching and how poached deer could be identified as well as the enhancement of monitoring sources of venison and all those other elements that my noble friend describes in his amendment.

    The amendment is enabling. It provides something upon which action can be taken if circumstances warrant in due course. I hope that this opportunity will be taken.

    My Lords, I also should like to support the amendment. It is an excellent idea, especially as regards making poaching more difficult or at least disposing of the carcasses. In fact, in properly run deer forests today all the carcasses are labelled for the game dealers. So in fact there would not be any extra aggravation at all.

    My Lords, I support Amendment No. 50. On two occasions, both here and in Committee, my noble friend Lord Pearson set out powerful arguments for a mandatory tagging scheme. I do not intend to repeat them. However, I should like to make a few brief comments on the venison industry and how a mandatory system would benefit the marketing of venison.

    My noble friend Lord Pearson referred to the feasibility study completed last year by the Association of Deer Management Groups. I received a more recent paper by the association on the administration of such a scheme which I hope has been seen by my noble friend the Minister as it addressed many of the anxieties he expressed in Committee. Both studies have taken the debate forward significantly and I look forward to hearing what he has to say on this.

    Perhaps I may comment briefly on one issue associated with marketing wild venison to the major retailers. It was raised in passing by my noble friend Lord Pearson in Committee and relates to the demands that retailers can put on producers so that venison products meet the same standards of traceability required of other meat products. In the venison industry those demands can include the transfer of the carcass to the larder within three hours of killing; carcasses in the larder not touching each other or the larder walls; stalkers being trained in elementary food hygiene; larders being approved by local environmental health officers and stags and hinds averaging set weights and ages. Many of those demands may be sensible, but others are quite impractical.

    My reasons for listing those demands are to show how important it is to retailers that venison meets the highest possible standards. I cannot see how, unless there is a mandatory scheme in place, it will ever be possible to raise the general standards of production to a level where retailers will accept wild venison. I recognise that even then they may not.

    A clear and defined market has been identified for Scottish wild venison. It is a product of which we can all be justly proud in Scotland. Public acceptability of venison products generally is still patchy and will remain so until the major retailers can be persuaded that production and processing procedures are of the highest standards. A mandatory scheme will, I believe, along with the other initiatives being promoted by the industry itself, kick-start that process at a crucial time. The voluntary principle has worked only so far, and I fear that unless the Government are willing to assist, much of the progress made will be undermined. Given that this is only an enabling measure, I hope the Minister can be persuaded to accept the amendment.

    8.45 p.m.

    My Lords, I am grateful for the eloquent way in which my noble friend Lord Pearson of Rannoch moved the amendment and other noble Lords spoke of the various aspects that carcass-tagging raises.

    In Committee I made it clear that I have an open mind on the subject of carcass tagging. I can see how a well-organised system of tagging of carcasses could bring benefits to those concerned about the origin of foodstuffs, as well as to those concerned about keeping more effective details on deer killed in Scotland.

    I have considered very carefully the proposals made by the Association of Deer Management Groups for mandatory carcass tagging and have met Stephen Gibbs and Richard Cooke from the association to discuss them. I understand the points that they and others are making and am prepared to see them fully evaluated.

    While carcass tagging would bring certain benefits however, it is also clear that it would impose burdens on those who have the right to shoot deer and, possibly, those who deal in venison. In the current deregulatory climate it is essential before proceeding with a proposal such as this to look very carefully at the implications of the proposal, to make a rational judgment as to whether the public and private benefits that would be gained from such a step would outweigh significantly the burdens it would impose.

    While I would not want to prejudge any full consultation exercise that might be carried out on these proposals at present I am not convinced that the benefits would outweigh the burdens. In particular, I see real difficulties in enforcing such a scheme in a country where there are no statutory limits on the number of deer people can shoot and no obligation on those with the right to kill deer to register with any relevant authority or other body. Both those points must be major barriers to the effective operation of a worthwhile mandatory carcass tagging scheme in Scotland.

    My noble friend Lord Woolton mentioned food quality and hygiene as being one of the benefits that would arise. In relation to food quality and hygiene, I can see how a tagging system would offer reassurance on the origin of deer carcasses if the system works effectively. But I am advised by my veterinary advisers that as far as they are concerned the current system of veterinary controls on handling venison is working in a satisfactory manner. The controls that they and environmental health officers operate focus in any case on procedures and practices in handling deer in larders and slaughterhouses. Where matching of pluck and carcass is concerned I am not advised that there is currently a problem on hygiene grounds, although I would of course be prepared to look at the matter again if evidence to the contrary comes to light.

    In relation to information about deer kills, about which my noble friend Lord Pearson feels strongly, I acknowledge that there is no current source of entirely accurate information about deer kills in every part of Scotland. But the Red Deer Commission's current system of census returns by deer managers and analysis of venison dealers' records offers a reasonably reliable indicator of total deer culls which for the most part is satisfactory for the purposes to which it is put. I am not convinced that the adoption of a mandatory carcass tagging system would add significant value to the current information system.

    My noble friend Lord Massereene and Ferrard dealt with the poaching issue. I can certainly imagine that a mandatory carcass tagging system could be a significant addition to the current means used to deter poaching. It would impose a degree of discipline on the venison-handling chain in this regard which is currently lacking. I do worry, however, that the difficulties I foresee in enforcement of the tagging requirement could significantly detract from its effectiveness; we could find valuable police and other resources devoted to enforcement of the tagging requirement when the real culprits are allowed to get on with the act of poaching itself. The amendment I am proposing separately to recast the offence of the illegal possession of venison, at the specific request of the Crown Office, is likely to have more practical effect on the practice of poaching than would tagging.

    I can see more reason for tagging if the industry was to choose to introduce it on a voluntary basis. I put it to Stephen Gibbs that a voluntary system allied to guarantees about handling as well as origin could achieve real benefits for participating estates and dealers; they would be doing what the retail and export trade is increasingly demanding and consequently improving their own market position for the long run at the expense of those who do not follow the tagging scheme. I still think that a properly funded voluntary scheme deserves full consideration and hope that those involved will give it such. The commercial advantage mentioned by my noble friend Lord Woolton is very relevant and is as much an incentive for a voluntary tagging scheme as a mandatory scheme.

    If, after all those points have been given careful thought, the conclusion of the industry and other concerned bodies is that a compulsory scheme is still necessary, then I will of course give that proposal the attention it deserves.

    One suggestion that has been made is that we limit ourselves to an enabling provision to allow the Secretary of State to introduce a mandatory tagging system by order if, after full consideration, it appears to him sensible to do so. The argument why we should adopt such a provision now, even though the case for mandatory tagging is at best not proven, is that opportunities for deer legislation are few and far between and it would be wrong to miss this opportunity which may not come round again for many years.

    I am reluctant to support a statutory provision of this sort when the principle has not been fully established. Parliament guards its prerogative of legislation with care and I do not see how an exception to this rule should be made on this occasion. In any case it is by no means impossible that parliamentary time could be found for a small Bill to introduce mandatory tagging at some point in the near future if the case is to be fully substantiated—as well as the normal Private Members' procedures.

    I remind the House that recent reforms introduced a fast-track system for Scottish business. It is just such a small provision which is unique to Scotland that the fast-track system is designed to accommodate. I fully acknowledge this has been a useful debate and this is an issue that raises some very important consequences, be they benefits or costs that arise from deer management generally. I reiterate the fact that I am open-minded on this. If the sufficient consensus and evaluation can be delivered to us during the passage of this Bill, if there remains time, or in the fast-track Scottish system for legislation, then it is something that Ministers would be prepared to pursue.

    My Lords, I am most grateful to my noble friend and also to the other noble Lords who were good enough to support me in this amendment which, as I mentioned at Committee stage has been strongly put forward by the Association of Deer Management Groups. I would just mention that they had their annual general meeting the day before our Committee proceedings and they were unanimous in their support of this scheme and also in their belief that a voluntary scheme simply would not work.

    My noble friend mentioned that two of the difficulties are that there are no statutory limits on the numbers shot at the moment. Also there is the problem of knowing who has the right to shoot deer. I would not have thought that either of those are really serious difficulties because all people have to do is apply to the Commission for the tags which they are going to put on the deer. Then the Commission will very soon know the people who think they have the right to shoot deer of whom the Commission is not already aware.

    My noble friend suggested that the present information system works well enough because the Red Deer Commission knows roughly what is going through the dealers and gets the returns from the estates. All I can say is that it may work reasonably well for the Red Deer Commission as to the numbers which are being shot, but it certainly does not work for the estates because the leakage is substantial—very often, I am afraid, from the estate larder itself when the owner is not there. That may be his fault for being an absentee landowner, but the situation where a van turns up at the larder door and the driver says to the stalker: "How many for you, Jimmy, and how many for the estate?" is not, perhaps, as rare a circumstance as it ought to be. Indeed, I suffered from that 20 years ago. Therefore, if the Red Deer Commission felt more able to reveal exactly which carcasses were going to which dealers from which larders, that might help us all.

    I am most grateful to my noble friend for his helpful attitude in this regard. As I have mentioned, a number of dealers have come forward, saying that they strongly support this system, at least as an enabling measure. I do not know what further evidence my noble friend might require to get such a provision on to the face of the Bill during its passage, but perhaps we can discuss this. Maybe we shall be able to provide that sort of evidence. If not, I was most encouraged to hear him say that we might be able to have some short sharp legislation further down the road. I am personally fairly sure that within the next 10 years or so we are going to need a system of this kind. My own view remains that it would be a pity to miss the boat on this occasion. I am most grateful to my noble friend for what we said. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 9 [Farmed deer]:

    The noble Earl said: My Lords, this important anti-poaching amendment is an amendment I spoke to when moving Amendment No. 34. I beg to move.

    On Question, amendment agreed to.

    Clause 10 [ Interpretation of the principal Act]:

    moved Amendment No. 52:

    Page 9, line 16, at end insert—
    (""animal foodstuffs", for the purposes of sections 33(3) and 33A(2) of this Act, includes foodstuffs intended for consumption by farmed deer;").

    The noble Earl said: My Lords, Clause 9 of the Bill disapplies the 1959 Act in respect of farmed deer with the exception of the provisions relating to dealing in venison and the use of firearms for slaughter.

    Deer farming was relatively new in 1982 and there were no codes to regulate the management of farmed deer. However, there is now sufficient protection and regulation for farmed deer, which can now be generally excluded from the 1959 Act.

    However, we do not intend that farmed deer, which are classed as livestock, should not be given the same protection as other livestock under Sections 6, 7, Section 33(3) and Section 33A(2) of the Act. These sections provide protection for livestock for injury, or overgrazing or competition for foodstuffs from wild deer. This protection is equally relevant to farmed deer as to other livestock, and this minor amendment will give them that protection. I beg to move.

    On Question, amendment agreed to.

    [ Amendments Nos. 53 and 54 not moved.]

    moved Amendment No. 55:

    Page 9, line 43, at end insert ("and, for the purposes of sections 6 and 7 of this Act, includes farmed deer.").

    The noble Earl said: My Lords, with my apologies to the House, I omitted to say, when moving Amendment No. 52, that I was also speaking to Amendment No. 55, which is connected to the purpose of Amendment No. 52. I beg to move.

    On Question, amendment agreed to.

    [ Amendments Nos. 56 and 57 not moved.]

    moved Amendment No. 58:

    Page 10, line 13, at end insert—
    ("take", in relation to deer, means take alive, and cognate expressions shall be construed accordingly;").

    The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 22. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 59:

    Page 10, line 14, leave out ("includes") and insert ("excludes").

    The noble Lord said: My Lords, this is an amendment which, again, was moved in our Committee proceedings. It seeks to exclude the use of aircraft, hovercraft or boats in the moving of deer for the purposes of culling them. It goes back to our debate on welfare. Some of us remain convinced that the use of a helicopter, particularly to drive wild deer must amount to an abuse of their welfare. It is in that spirit that I move this amendment again.

    When he comes to answer, I would be grateful if my noble friend could confirm the understanding which I thought I gathered at the Committee stage that, in fact, helicopters can only be used by the owners and occupiers of land to drive deer. They could not be used by the Commission in any of the exercises we have been discussing earlier on this evening under Clauses 4 and 5 of the Bill.

    That would do something to set one's mind at rest, I suppose, but the basic fact remains that to drive wild deer with helicopters is, in my view, unacceptably cruel. I beg leave to move.

    9 p.m.

    My Lords, I very much share the concerns of my noble friend Lord Pearson about this. I referred to it in Committee and I subsequently had the benefit of looking at the draft code of practice or code guidelines for moving deer by vehicle or aircraft with the intention of carrying out essential culling work.

    When one looks at them one realises exactly what is at stake and what an unattractive proposition it involves. I am only too well aware from my professional experience of just how valuable, because of their manoeuvrability on all sorts of terrain, helicopters are. I certainly do not know whether my noble friend has carried out any consultation with those who might be asked to undertake this task but, so far as I can tell, what the code of practice seeks to do or seeks to allow by means of helicopters, or to control by means of helicopters, leads to an unacceptable state of affairs which I think would be very much resented all over the place by a great many people who would feel it is an horrific way to treat deer.

    My Lords, perhaps we should also consider scrambler motor bikes and quad motor bikes which can go pretty fast if they are driven professionally and would also harass the deer very cruelly.

    My Lords, the amendment moved by my noble friend Lord Pearson and spoken to by my noble friends Lord Glenarthur and Lord Massereene is something to which the Government have given considerable attention. In fact, it is something to which the Red Deer Commission itself has given considerable attention in that it was seeking to take a long-term view as to what procedures in exceptional circumstances may be necessary over the next number of years. I do not think anyone who has put the amendment forward sees this as being something that will be a normal activity. It will just be used in exceptional circumstances.

    I respect the experience on this subject of the three noble Lords who have spoken, especially as I remember my noble friend Lord Pearson saying that he had in the past sought to drive deer by helicopter, and I know that my noble friend Lord Glenarthur knows something about helicopters. Therefore, I am not impervious to the suggestions they have put to me.

    The first point to make is that the definition of vehicles as it stands was taken from the Deer Act 1991 and is therefore a standard definition incorporating the types of vehicle which might conceivably be found in a rural or a remote setting. Whether a vehicle—for instance, a helicopter—would actually be used to move deer would depend on the practicalities of each instance and in particular the size of the task and the nature of the terrain. Any use of vehicles will be subject to the code of practice to be prepared by the commission which will have welfare at its heart.

    It is also important to keep in mind when considering the question of deer and vehicles that deer can be moved at present using vehicles. It is only an offence at present to use vehicles to move deer if the operation is carried out on unenclosed land with the intention of taking, killing or injuring them. It is our intention that the use of vehicles to move deer for essential culling operations be subject to commission authorisation and a code of practice. The main aim of driving deer is to move them to areas where they can be more easily managed. It may simply be to move them to areas where the ground is less vulnerable to the numbers of deer involved. The commission will only consider issuing authorisations to drive deer when the provision of the code of good practice is met and there is a real need to take action in this way. I can reassure my noble friend Lord Pearson that only owners and occupiers can apply for this authorisation. The commission itself cannot, as it were, grant the authorisation to use helicopters.

    I would encourage noble Lords perhaps to ponder my response to this amendment. The use of helicopters, hovercraft and so forth is something that we do not see as being an immediate need. I shall also ponder the amendment between now and Third Reading. If we are all thinking about this I am sure that we will come up with the wise and right answer.

    My Lords, I suppose we have no option but to ponder. My noble friend suggested that I had sought to drive deer by helicopter. What I have tried to do is to move them out of a modern plantation, and that does not work. The idea of moving deer by helicopter to a place where they can then be left and that that will be that is unlikely to be accurate. I should have thought that as soon as they get to wherever they have been moved to they will just turn around and go back to where they came from. I am afraid, as my noble friend Lord Glenarthur mentioned, that the draft code of practice for moving deer by helicopter with the intention of carrying out essential culling work remains a very disturbing document.

    While my noble friend ponders, I must ask him to understand that a number of us have really made up our minds on this subject. I do not think we can be persuaded that it is an acceptable way to treat deer. However, in the meantime, I am most grateful for what he said. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [Amendment No. 60 not moved.]

    Schedule 1 [Minor and Consequential Amendments]:

    moved Amendments Nos. 61 to 75:

    Page 11, line 33, after first ("or") insert ("taken and").
    Page 11, line 42, after ("killing") insert ("or taking").
    Page 11, line 43, leave out ("the carcase of").
    Page 11, line 43, at end insert ("or taken"").
    Page 12, line 1, leave out ("the carcases (if any) of").
    Page 12, line 1, at end insert ("taken or").
    Page 12, leave out lines 9 and 10 and insert—
    ("(ii) for the word "carcases" there shall be substituted the word "deer"; and").
    Page 12, line 28, after ("poaching)") insert ("—
  • (a) in subsection (1), after the words "legal right" there shall be inserted the words "to take or kill deer";
  • (b) the proviso to subsection (1) shall cease to have effect; and").
  • Page 12, line 34, leave out from ("(2)") to end of line 35 and insert ("—
  • (i) for the words "to take or wilfully" there shall be substituted the words "wilfully to"; and
  • (ii) for the words from "as" to the end of that subsection there shall be substituted the words "of a class prescribed in an order under section 23A(1) of this Act";").
  • Page 12, line 49, at end insert ("and—
    (f) in subsection (5), the word "alive" shall cease to have effect.").
    Page 13, leave out lines 5 to 11.
    Page 14, line 4, leave out (""found on") and insert (""the carcases"").
    Page 14, line 5, after ("words") insert (""any deer").
    Page 14, line 44, at end insert ("and").
    Page 15, line 3, leave out from ("determine.") to end of line 5.

    The noble Earl said: My Lords, I have spoken to Amendments Nos. 61 to 75 inclusive. I beg to move.

    On Question, amendments agreed to.

    Schedule 2 [ Repeals]:

    moved Amendment No. 76:

    Page 15, line 46, column 3, at end insert ("In section 22, the proviso to subsection (1).").

    The noble Earl said: My Lords, I spoke to Amendment No. 76 when moving Amendment No. 22. I beg to move.

    On Question, amendment agreed to.

    moved Amendments Nos. 77 and 78:

    Page 15, line 46, column 3, at end insert ("In section 23(5), the word "alive".").
    Page 16, line 8, column 3, after ("33,") insert ("in subsection (3), the words "the carcases of," and").

    The noble Earl said: My Lords, I spoke to both these amendments when moving Amendment No. 22. I beg to move.

    On Question, amendments agreed to.