Report (1st Day) (Continued)
Clause 9: Monitor
36: Clause 9, page 6, line 18, at end insert—
“( ) The Office of Rail Regulation is renamed as the Office of Rail and Road Regulation.”
My Lords, in this grouping I have five small amendments, Amendments 36 to 40. They really suggest that perhaps the Office of Rail Regulation needs renaming, whether as the Office of Rail and Road Regulation, the Office of Road and Rail Regulation, the Office of Surface Transport or something like that. Given that the Government and Passenger Focus have agreed to change that organisation’s name, I wondered whether the Minister had any proposals to make this change.
Amendment 39 tries to link in with the licence and other things about which we were talking. Probably the most important amendment in this group of five is Amendment 40. Can the Minister explain why Clause 9(5) is there? Basically, the strategic roads authority would not have to provide any documentation to the monitor or office of road regulation if it was confidential. It could not be compelled to produce such information.
I do not believe that that is the case for the Office of Rail Regulation or Network Rail. Network Rail should provide every bit of information that is required. I know from discussions in Germany with the German rail regulator that the German railway, Deutsche Bahn, succeeds in preventing the regulator from investigating some sections too thoroughly because it was not given the information. It is a bad precedent. Would the Minister consider whether this paragraph is necessary or could be changed?
The final two amendments in this grouping are Amendments 41 and 42. Perhaps I should speak to Amendment 42 and the Minister could answer. She should then speak to Amendment 41, which is a very good amendment that I welcome. It concerns compliance and fines, and I am sure that the Minister will talk about fines. Look at new subsection (1)(a) and (1)(b) on a road investment strategy and directions and guidance, proposed in government Amendment 41; it would be rather good to have in addition two paragraphs (c) and (d) that referred to compliance with safety and efficiency requirements. It seems to me that that would tie up the role of the ORR and make sure that it had to investigate all these issues such as safety and efficiencies and, if necessary, levy fines or impose any other penalties that it felt should be imposed. I beg to move.
My Lords, I have previously discussed the rationale behind a number of government amendments which will further define the duties of the monitor. Amendment 41, which I have already described but will move shortly, if I understand it correctly, makes it clear that if the company fails to comply with its statutory directions or have regard to guidance, the monitor may issue fines. We have covered Amendment 43, which will give the monitor a duty to drive performance in a number of areas.
Amendments 38 and 39 propose an alternative to the Government’s definition of the monitor’s function. However, as I have mentioned, the Government’s amendments to the Bill already describe what the monitor should have regard to when monitoring the strategic highways company. With those in place, the distinction between “monitoring” and “ensuring” should become academic.
The noble Lord, Lord Berkeley, has also proposed that we remove subsection (5), which prevents the ORR requiring the company to provide it with information that it would not be compelled to produce during civil proceedings. Our legislation already grants the Office of Rail Regulation strong legal powers to require the strategic highways company to disclose data. However, I reassure noble Lords that this does not mean that the monitor has carte blanche to access every file held by the company. For example, the company should not be obliged to disclose particularly sensitive documents—for example, legal advice. This is a perfectly reasonable proposition.
In assessing the performance and efficiency of the company, there is little information that the company would not be compelled to disclose during civil proceedings that would help inform the monitor’s analysis. In addition, pitching this at the level of civil proceedings has a precedent. The provisions in subsection (5) mirror those in Section 58 of the Railways Act 1993.
As for the amendment of the noble Lord, Lord Berkeley, to the government amendment, I agree that the company must comply with its health and safety obligations and have due regard to maximising efficiency. It is also important that the monitor has the power to sanction the company if its performance and efficiency have been insufficient, as the Government’s amendments have set out. However, as we have already discussed, I do not believe that it follows from this that the monitor needs further powers to issue sanctions for health and safety. The Health and Safety Executive is responsible for policing this area and every company has an obligation to comply with the Health and Safety at Work etc. Act 1974, regardless of what our monitor is empowered to do. As there is already an effective and respected body in this area, I feel that it should be left to continue with its good work.
Turning to the second addition, once more I agree that maximising efficiency on the design, construction and operation of the highways is important. When we discussed Amendment 43, we made it clear that the monitor has critical responsibilities in assessing the key themes of performance and efficiency; and it will need to use its powers of sanction accordingly. The Government’s amendments ensure that these issues are given appropriate regard. The monitor will have the power to sanction the company if it is satisfied that the commitments of the road investment strategy, which will include commitments on construction and on efficiency, have been contravened.
This leaves the issue of design, which is currently the remit of existing planning authorities. Planning authorities operate effectively and judiciously all across the country. They currently have the responsibility for approving the design of any highways and are well placed to consider local issues. This system works well, and I believe that matters of design should remain in their capable hands. They need not be duplicated by the monitor.
Finally, I turn to the first amendment in this group. This proposes that the Office of Rail Regulation be renamed the Office of Rail and Road Regulation. As your Lordships may be aware, following discussions in Committee we have announced that we plan to change the legal name of the watchdog from the Passengers’ Council to Transport Focus. I can understand why the noble Lord proposes this change for the monitor. This case, however, is less straightforward.
There is the issue of the proposed name. While it may appear that we are indeed talking about an office dealing with road and rail issues, I urge caution around “regulation”. The monitor will not be a regulator of roads, at least in the market-setting sense in which the ORR currently regulates the railways. It will not control the direct costs on individual motorists for using the network, as it does on the rail side, because for the vast majority of roads such costs do not exist. In fact, the tools available within a hypothetical office of rail and road regulation would be very different, depending on which side of the road or rail fence it was acting.
We have discussed this question with the ORR itself. It is very alert to the new challenges of its role, and to the value of handling road and rail policy in one organisation. It does not, however, think that a name change is appropriate at this time.
Unlike Passenger Focus, the ORR has to manage a relationship with its levy payers in the rail sector and has a formal role in making sure the rail market functions well. Given that this is a substantially different role to roads, it would rather carry out the road work under a strong free-standing brand—the strategic road network monitor—while retaining its current statutory name for its existing work. This will ensure that any confusion is avoided and that, in the eyes of the public, roads monitoring is clearly differentiated from rail regulation. This will make it clear that neither road nor rail users risk having their interests eclipsed by the other.
There is also a practical issue with the noble Lord’s approach to renaming the Office of Rail Regulation. Considering the varied legislation in which the name “the Office of Rail Regulation” appears, the proposed amendment would not be in itself sufficient to make the change. There would also need to be significant tidying up. That is why we are renaming Passenger Focus, through secondary legislation, in which these implications can be worked through. If we were changing the name of the ORR, we would want to follow the same approach.
The amendment that I propose is an important safeguard in ensuring appropriate monitoring of the strategic highways company, and I hope that your Lordships will support it. Conversely, I believe there is a strong argument against each of the amendments of the noble Lord, Lord Berkeley, and ask that he withdraw this one.
I am grateful to the noble Baroness for her full answers to those questions. I shall not push the ORR issue again. It is not something that has to be top of the priorities, but I am grateful to her for her explanations, and I beg leave to withdraw the amendment.
Amendment 36 withdrawn.
Amendments 37 to 40 not moved.
41: After Clause 9, insert the following new Clause—
“Monitor: compliance and fines
(1) If the Office of Rail Regulation is satisfied that a strategic highways company has contravened or is contravening—
(a) section 3(5) (compliance with the Road Investment Strategy), or(b) section 4(3) (compliance with directions and regard to guidance),the Office may take one or more of the steps mentioned in subsection (2).(2) The Office may—
(a) give notice to the company as to the contravention and the steps the company must take in order to remedy it;(b) require the company to pay a fine to the Secretary of State.”
Amendment 42 (to Amendment 41) not moved.
Amendment 41 agreed.
43: After Clause 9, insert the following new Clause—
“Monitor: general duties
(1) The Office of Rail Regulation must exercise its functions under sections 9and (Monitor: compliance and fines) in the way that it considers most likely to promote—
(a) the performance, and(b) the efficiency,of the strategic highways company.(2) The Office must also, in exercising those functions, have regard to—
(a) the interests of users of highways,(b) the safety of users of highways,(c) the economic impact of the way in which the strategic highways company achieves its objectives,(d) the environmental impact of the way in which the strategic highways company achieves its objectives,(e) the long-term maintenance and management of highways, and(f) the principles in subsection (3).(3) The principles are that—
(a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent, and(b) regulatory activities should be targeted only at cases in which action is needed.”
Amendments 44 to 47 (to Amendment 43) not moved.
Amendment 43 agreed.
48: After Clause 9, insert the following new Clause—
(1) The Secretary of State may from time to time give the Office of Rail Regulation guidance as to the manner in which it is to carry out its activities under section 9.
(2) The Secretary of State and the Treasury, acting jointly, must give the Office guidance as to the circumstances in which the payment of a fine under section (Monitor: compliance and fines) should be required.
(3) The Office must have regard to guidance given to it under this section.
(4) Guidance under this section must be published by the Secretary of State in such manner as he or she considers appropriate.”
Amendment 49 (to Amendment 48) not moved.
Amendment 48 agreed.
Clause 13: Transfer of additional functions
Amendments 50 and 51 not moved.
Clause 15: Interpretation of Part 1
52: Clause 15, page 10, line 6, at end insert—
““users of highways” includes cyclists and pedestrians.”
Your Lordships have previously asked if cyclists and walkers are included in the definition of road users of the strategic road network and other highways. The answer remains emphatically yes, and I have moved an amendment to make this absolutely clear for the provisions of the Bill where we use the phrase “users of highways”. I should also point out that this definition—I have double-checked this with the lawyers—absolutely does not exclude any other users who may not be mentioned.
The House should congratulate the Minister on the amendment. We have discussed it so often. We have been told on many previous occasions that Governments do not like lists; you can understand that. I shall not table an amendment saying, “Please add Segways and horses” or anything else. I take what the Minister says: this covers everything.
In that vein of thanks, the two other amendments in this group are to do with cycling and walking strategy. Some noble Lords have already spoken on cycling and walking. It may seem odd that on strategic highway routes there is not much cycling and walking. I suggest that there should be. It is important that, as part of the strategies that the strategic highway company will have to look at, it should have a separate cycling and walking investment strategy.
In this House we have debated cycling on many occasions. The pressure is on from many areas, not just from the cycling and walking organisations but also from those who believe that they are pretty healthy forms of transport, to get the Government to commit to a long-term strategy with some long-term funding. So far, Ministers have not been able to make any commitment to funding, but the recommendations from the All-Party Parliamentary Cycling Group’s report last year suggested that £10 per head of population per year—which is about half the figure in many continental countries, such as Belgium, Holland and Denmark—could be allocated on a long-term basis to improving cycling facilities, infrastructure and other things,
I know that Ministers have in the past said that this is a local problem and that it should therefore be funded locally. The problem is that local funding does not usually stretch to such things. Many people believe that, combined with a draft strategy, something like what is in Amendment 55 and the proposed new schedule in Amendment 96 should be done for the benefit of health, and for cyclists and walkers, and to reduce road congestion, pollution and the other things that we talked about earlier.
I look forward to the Minister’s response, and take into account that this is only the small tip of an iceberg. As my noble friend Lord Davies of Oldham said, most journeys take place on local roads. Still, it is a start, and if it could happen on the trunk road network, I suspect that the other roads would soon follow.
My Lords, I, too, very much welcome the Minister’s amendment. It offers clarity and shows that the Government are quite clear that cyclists and walkers are important on the highway network. I admit that I could not resist backing the amendment of the noble Lord, Lord Berkeley, because, although I am not an absolutely regular cyclist, I get my bike out quite frequently in Cornwall, which is not the easiest of terrain to cycle.
I was in continental Europe over the weekend, and it was astounding to see how important cycling can be in terms of an alternative transport means and strategy. If it is one that is generally safe, and one that is accepted among families, then it becomes a normal way of getting to school, of getting to work and moving around. Indeed, I remember doing it as a child back in the 1950s and 1960s. I always used to cycle to school, save the bus fare and spend it elsewhere. That was my disposable income for the week.
Given the excellent work that, in particular, my right honourable friend Norman Baker has done in the other place in the past, and the Local Sustainable Transport Fund, this is something that we need to build on. That is why I was very pleased to support this amendment. It would be good to move to a proper formal government strategy in this area. It is also all part of our commitment to reduce carbon emissions in the transport sector, and a very important way of doing that. Having said that, I also understand the argument that—hopefully—as we devolve more fiscal powers to cities and non-metropolitan areas as well, this should be a major part of their focus of work, too.
It would be a sign that the Government is looking at this area and has some strategy that they see as a framework. It would also give a signal that the Government think that this is important, and would get them ahead of the curve on this important change that is gradually happening. It would be so much better for all of us: for emissions, for physical exercise and for congestion. It would have big pluses for all those points of view. That is why I am pleased that the Minister has proposed the amendment that she has, but I hope that the Government can consider this and take it forward in some way or another.
I thank noble Lords for that brief but very interesting debate. I suspect that everyone in this House recognises the importance of cycling. I will use the opportunity to name some of the coalition Government’s successes in this area. Government spending on cycling overall since 2010 has more than doubled compared to the previous four years: £374 million has been committed between 2011 and 2015. Cycling spend is currently around £5 per person each year across England, and over £10 per person in London and our eight cycling ambition cities across England: Birmingham, Bristol, Cambridge, Leeds, Manchester, Newcastle, Norwich and Oxford. Since that £10 is an important marker number, I draw attention to it.
Our recent investment in bike and rail has been the major enabler in doubling cycle parking spaces at railway stations since 2009. I announced a further £15 million of bike and rail funding in July 2014, to triple the number of cycle parking spaces at railway stations. Cycle journeys are often local in nature, however, and it is right that many of the decisions about the level of investment in cycling are made locally. With unprecedented levels of long-term funding available in the Local Growth Fund, this means that all local areas that wish to can invest £10 per head in cycling. The Local Growth Fund has made £3 billion available for local transport schemes, and that is just so far. This long-term funding is from a total package of £12 billion, which will run until 2020-21, and includes £700 million for packages of schemes that include cycling and walking.
In order to meet our ambition to make the UK a cycling nation, there are other important measures needed as well as providing funding to deliver high-quality cycling infrastructure. We need that commitment from local government leaders to recognise cycling and walking as crucial to the health of the economy, of their local areas, and of individuals. But we have to tackle safety issues, including perceptions of safety. There is no point in funding infrastructure if people are afraid to use it.
As many noble Lords are no doubt aware, we have recently published our draft cycling delivery plan. This 10-year plan sets out our proposals on how the Prime Minister’s ambition—an ambition shared across the coalition—to achieve a cycling revolution is to be delivered. As part of that, it sets out how government, with local government and businesses, can work together to collectively achieve a long-term vision for cycling. It includes ambitions to double cycling levels by 2025 and increase the percentage of school children aged five to 10 walking to school to 55% by 2025.
It also has aspirations to explore with local government and business how we can achieve a minimum funding packet equivalent to £10 per person each year by 2020-21, and sooner if possible. By inviting local authorities to form strategic partnerships with government, it is our intention to build a better picture of the infrastructure, funding structures and capacity that each partner authority needs to really deliver transformational levels of cycling and walking in their areas. I hope very much that your Lordships will contribute during the consultation phase that follows the publication of the report, which also addresses the All-Party Parliamentary Cycling Group’s recommendations in its Get Britain Cycling report and some of the recommendations in the All-Party Parliamentary Commission on Physical Activity report, Tackling Physical Inactivity: A Coordinated Approach, setting out how cycling and walking will contribute to the Government’s work to ensure a physical activity legacy from the London 2012 Olympic and Paralympic Games.
Rail and strategic roads are national networks; local roads are just that—local. Of course, where cycling and walking is integrated with these national networks, such as through station parking or providing safer cycling facilities on the strategic road network, I would expect the Government to be involved. I believe that through the cycle rail programme, and the programme to cycle-proof the strategic road network, the Government are already making major inroads in this area. But surely a national cycling and walking imposition would go against the principles of localism, whereby we believe councils are best placed to know what their local communities need.
Of course there is a role for government to explore how we can best support local authorities and local businesses to deliver their ambitions for cycling and walking, and we have set out how we propose to do that in the draft cycling delivery plan, as we seek to create strategic partnerships with local government. I hope that the approach, which is reinforced by further announcements this week on devolution, has set out and demonstrated that we are committed to cycling and walking in addition to all other forms of transport. On that basis, I hope that the reassurance provided to your Lordships will enable them not to press the amendment with the new clause.
Amendment 52 agreed.
53: After Clause 15, insert the following new Clause—
“Part 1APowers of British Transport Police ForcePowers of British Transport Police Force
(1) In section 100 of the Anti-terrorism, Crime and Security Act 2001 (jurisdiction of transport police)—
(a) in subsection (2)(b), after “personal injury” insert “or damage to property”, and(b) omit subsection (3)(a).(2) In section 172 of the Road Traffic Act 1988 (duty to give information as to identity of driver etc in certain circumstances), in subsection (2)(a), after “chief officer of police” insert “or the Chief Constable of the British Transport Police Force”.”
My Lords, this amendment concerns the powers of the British Transport Police and is tabled by the Government after further consideration of the amendments suggested by the noble Lord, Lord Faulkner of Worcester, to Section 100 of the Anti-terrorism, Crime and Security Act 2001 and to Section 172 of the Road Traffic Act 1988. We have accepted the broad principles behind the noble Lord’s amendments, but have made certain technical and drafting changes.
The first subsection of the proposed new clause concerns extending the British Transport Police’s jurisdiction under Section 100 of the Anti-terrorism, Crime and Security Act 2001. Since Committee, we have reflected further on the noble Lord’s suggestion and are persuaded that some of the current limitations set out in Section 100 of the 2001 Act may indeed compromise the British Transport Police’s effectiveness and impact on interoperability with the territorial police forces. As a result, we agree that there is merit in removing the requirement for BTP officers to either be in uniform or able to produce a warrant card in order to be able to act beyond their core railway jurisdiction where there is an immediate need to do so and they are acting on their own initiative.
That would permit BTP officers to act on their own initiative in any police area in England and Wales when in plain clothes and without producing a warrant card, subject to any limitations placed on them under the Police and Criminal Evidence Act 1984, where they have reasonable grounds to suspect a person of having committed an offence, being in the course of committing or being about to commit an offence, or where they have reasonable grounds to believe that they need to act in order to save a life or to prevent or minimise personal injury. In other words, it would ensure that a BTP officer is able to act whenever immediate intervention is required, whether on duty or not, and regardless of the officer’s regular jurisdiction.
We are persuaded also that the prevention of damage to property should be added to the circumstances in which a BTP officer may act beyond his normal jurisdiction. Extending the jurisdiction to include the safeguarding of property provides a very limited extension of the BTP’s remit, exercisable in circumstances when the officer is satisfied that he has reasonable grounds on which to determine that he should exercise his constabulary powers rather than secure the attendance of an officer from the territorial force, or in response to a request from an officer of that force to act.
We remain unpersuaded that it is necessary to remove the need for the BTP officer to make a judgment on whether to act or to await the attendance of a territorial force officer who would in the normal course of events deal with the particular incident, or to act at the request of the relevant territorial police force. It is important that BTP officers act outside their normal jurisdiction only when there is an immediate need to do so. The exercise of judgment on whether intervention is necessary, and how such intervention should be conducted, is something that police officers exercise on a daily basis. We are not convinced that this places an unnecessary restriction on BTP officers. Removing this constraint would risk distracting them from their prime focus of policing the railway—a role that I note is paid for by the rail industry. Furthermore, having a totally rail-focused police force is absolutely critical to the effective function of our railways.
The changes made by this subsection of the new clause will affect BTP officers in England and Wales. The amendment to Section 100 extends the BTP’s jurisdiction when acting in the police area of the police service of Scotland and the Scottish Government have decided that they are unable to support such an amendment.
The second subsection of the new clause pertains to the powers of the British Transport Police to issue notices under Section 172 of the Road Traffic Act, which deals with identification of vehicle drivers who have committed road traffic offences. The police are empowered to write to vehicle keepers and request information on the driver. Failure to comply is an offence that can carry a court fine of up to £1,000 or a fixed penalty of £200. That request must come from a chief officer of police.
Given the BTP’s role in road traffic law enforcement, it seems sensible that it should have the same information-seeking powers as other police forces. The potential for a serious accident involving a road vehicle and a train where a car is left on a level crossing or parked in an inappropriate manner in a railway environment requires that the BTP be able to identify and bring the relevant legal proceedings.
The amendment will amend Section 172 to include an express reference to the Chief Constable of the British Transport Police. We think that this is appropriate and sensible and hope that it will have the support of the House. As Section 172 is a non-devolved matter in relation to Scotland and Wales, this proposed change will apply to all of Great Britain and does not require a legislative consent Motion.
Amendment 53A (to Amendment 53)
53A: After Clause 15, line 9, leave out “(3)(a)” and inset “(3)”
My Lords, in moving Amendment 53A, which is in my name and the names of the noble Lords, Lord Ramsbotham, Lord Bradshaw and Lord Jenkin of Roding, whom I am delighted to see in his place at this late hour, I shall speak also to the other amendments in this group, which were tabled by the Minister and by the same group of four of us.
I start by expressing my very genuine thanks to the Minister for listening so closely to the arguments which were put forward in Grand Committee and for accepting the principle that the Infrastructure Bill is an appropriate vehicle to put right the anomalies surrounding the jurisdiction and powers of the British Transport Police. That is why I was happy to add my name to her Amendment 53. I shall not repeat the arguments that I made in Committee on 8 July, not least because the Minister has accepted many of those points.
However, there remains the one unresolved issue, to which the Minister referred, and that concerns Section 100(3)(b) of the Anti-terrorism, Crime and Security Act 2001. The Minister said that she wants to keep that in being and the purpose of our amendment is to take it out. In effect, subsection (3)(b) states that when a BTP officer is off-jurisdiction he or she has to decide whether to act and use the power of arrest. That involves a judgment call—indeed, the Minister used those words. This aspect has been addressed very directly by the chair of the British Transport Police Authority, Millie Banerjee, who wrote to the Minister about subsection (3)(b) last Friday. She wrote:
“This subsection requires BTP officers to work through a complex legal test, often in quick time, which can result in uncertainty, challenge and delays in responding to the public.
I illustrate the problem with subsection (3)(b) with a practical example on metal theft. BTP is the ACPO Lead Force for metal theft and officers regularly conduct visits to scrap metal dealers’ yards, which are outwith BTP jurisdiction, to inspect their record keeping. This enforcement activity has a proven deterrent and detection function which has been a critical factor in the substantial reductions in metal theft crime on the railways and other sectors across the UK.
Although BTP officers exploit intelligence to target their visits, there will often be an absence of specific grounds to suspect that stolen railway metal will be at the yard. In the strictest sense of the current legislation, under subsection (3)(b), BTP officers should arguably call upon local Home Office colleagues to attend the yard and exercise any relevant powers. This would be duplication of effort and is hard to justify to a public who understand the pressure on police resources. In reality BTP officers exercise the relevant powers but are having to make their action fit the complex provisions of this subsection. This is not in the view of the Authority satisfactory and introduces risk of legal challenge where none should exist. It is to the detriment of the fight against metal theft”.
The Minister is apparently concerned that if this provision were removed the BTP would go off-piste, as it were, and not dedicate their time to railway duties. That is simply not true. Indeed, Ms Banerjee answers that point directly:
“Should you feel able to support the removal of subsection (3)(b) I can allay any fears that BTP will stray from its clear focus on the railways. Chief Constable Paul Crowther has committed to reducing crime and disruption on the railways by 20% by 2019. This focus, reinforced by the oversight of the Authority and the requirement to satisfy BTP stakeholders, will ensure that strong control will be exercised with regard to any wider jurisdictional power granted for BTP”.
Very similar points have been made in letters and e-mails to me from Dame Shirley Pearce and Chief Constable Alex Marshall, the chair and chief executive officer respectively of the College of Policing, and by Roger Randall, the general secretary of the British Transport Police Federation. They all say that our original amendment should be supported because it removes the whole of Section 100(3) of the Anti-terrorism, Crime and Security Act 2001. Dame Shirley Pearce, in her letter to me, says:
“The general public expect the police to act and behave consistently and to work to consistently high standards. It is in the public interest that a parity is sought in the way in which police officers are able to discharge their duties and that, wherever practical, obstacles to consistency are identified and removed”.
We know that legal challenges are occasionally made on the issue of jurisdiction. I shall share with your Lordships an extraordinary case from Scotland. On 21 May 2011, there was a disturbance—a fight—at a car boot sale in the car park of a primary school in Glasgow. A BTP sergeant, who was off-duty and not carrying his warrant card, happened to be there and made an arrest for breach of the peace. The arrested person made a legal challenge stating that it was an unlawful arrest because the officer did not have his warrant card on him. BTP had to pay £1,000 in damages and £240 in costs—not a good use of public money when all the officer was doing was acting in the public interest and conscientiously doing his duty when not on jurisdiction.
In conclusion, I am genuinely grateful to the Minister for moving such a long distance since we debated this in Grand Committee. Indeed, her amendment relating to level crossings in Section 172 of the Road Traffic Act is an improvement on ours, since it does not restrict the wording to railway offences. This is good news because road traffic offences occur on service roads and railway property and it is important for the BTP to deal with offences such as drink-driving or dangerous driving on those roads. Our only area of disagreement is subsection (3). I urge the Minister, please, to take account of the views of Members in all parts of this House, of the chair of the British Transport Police Authority, of the chair and chief executive officer of the College of Policing and of the general secretary of the BTP Federation, and agree with our amendment to remove it. I beg to move.
I echo the noble Lord, Lord Faulkner, in my thanks to the Minister for having gone so far to meet the case made very forcefully in Committee last July. As I said briefly then—I shall not be any longer tonight, I assure the House—I found the arguments that the noble Lord, Lord Faulkner, advanced on that occasion to be absolutely incontrovertible. Like him, I am disappointed that the Minister has not gone the whole way.
I listened with great care to what the Minister said about why the Government have found it necessary to retain those restrictions, as they indeed are, on the British Transport Police’s activities in Section 100(3)(b) of the 2001 Act. Frankly, I find the suggestion that a British Transport Police officer will somehow be distracted from his primary duty of policing the railways because he finds it more exciting to do things, as it were, off his main beat to be a frivolous argument. I am sorry to sound a bit condemnatory, but I simply cannot see how it could conceivably happen.
I have not seen any of the correspondence that the noble Lord, Lord Faulkner, has had and from which he quoted a few moments ago. However, one of those letters made it absolutely clear that the writer, a very senior officer in the British Transport Police, regarded this as so unlikely that it ought not to be seriously considered. That is exactly my view and I am very sorry to hear my noble friend advance that as an argument.
One knows that behind this is the long-standing argument between my noble friend’s department and the Home Office, which is responsible for the constables in the rest of the country, except of course in London. However, to try to compromise with that department on this issue is something that no noble Lord in this House or Member of Parliament in another place would feel was reasonable. For that reason, I very much hope that my noble friend—I recognise that we are not going to vote tonight; it would be a slightly weird Division—will reconsider this between now and Third Reading and bring forward another amendment, or, as the Bill was first introduced in this House, consider with her colleagues whether she might put this nonsense right in another place. Having got this far with something for which Parliament has argued and waited over many years, falling at the last fence would be very sad indeed. I beg my noble friend to recognise that her argument does not carry much weight and she should face up to the Home Secretary and say, “I’m sorry, we are going the whole way. We are going to repeal paragraph (b) also”.
My Lords, I will be brief because the two speeches from my noble friend Lord Faulkner and the noble Lord, Lord Jenkin, on the noble Baroness’s own Benches have established a strong case. Of course we all appreciate the strenuous efforts that have been made to meet the points made so forcefully in Committee, but it seems clear that the Government’s reservation is ill founded and the Minister ought to give an undertaking to the House that she will make every effort prior to Third Reading to ensure that we finally wrap this matter up.
My Lords, I point out to the noble Lord, Lord Davies, that his Government failed to change any of these clauses and we are now getting to grips with a long-standing issue.
I first pick up on the issue raised by the noble Lord, Lord Faulkner, who described a case that obviously outraged the House. That is exactly a situation that can no longer stand, given the amendments that the Government are bringing forward. An officer would not be in the position in which, in the absence of a warrant card, he would be vulnerable. The amendments that we have brought forward would precisely deal with that issue for an officer in plain clothes using a warrant card who was attempting to prevent an injury. That incident is clearly covered.
I suppose that I have been in the department for only a year, but I am conscious of the constant attempts to raid the BTP for many other services, and the view of a lot of the forces across the country that the BTP ought to be an available resource. We are absolutely clear that changing the language in the way in which the noble Lord, Lord Faulkner, suggested would make this a far easier task. It is crucial for the future of rail transport that there is a genuinely dedicated force. I point out again that it is paid for by the railway industry, which adds to its concern that its force would be available to operate in any neighbourhood on any issue. I ask it to make a judgment; police forces make judgments the whole time, and the judgment that we are asking the force to make is well within the scope of its competence on the few such occasions that arise, without the general change that has been requested. I think we have gone as far as we can on this and I also ask your Lordships to rethink the position they are taking, because it is genuinely important that we keep the British Transport Police dedicated to the railways in the way that it is at present.
My Lords, I naturally accept the Minister’s point. Nobody is a greater defender of the BTP’s role in policing our railways than I am. For her to say that none of this was undertaken during the years of the previous Government is a bit unfair to those of us who have been raising the issue of the role and jurisdiction of the BTP since, in my case, 2001. Putting that to one side, the officer in the punch-up in the school playground would still have had to make the judgment call required in subsection (3)(b). A clever lawyer could easily say he acted without thinking properly. That would not have applied to any other officer and subsection (3)(b) is unacceptable because it treats BTP officers differently from civil police officers and puts them on a different level. As public policy, that is not in anybody’s interest.
I am obviously not going to invite the House to come to a decision on this tonight and I will ask permission to withdraw the amendment to the Government’s amendment. However, I very much reinforce the arguments made by the noble Lord, Lord Jenkin of Roding—I thank him for them—which were very persuasive, particularly in suggesting to the Minister that she might use the few weeks between now and Third Reading to consider whether the Government can come back.
There is one other matter to which I did not refer in my speech because I was a little taken aback by what the Minister said in hers in relation to Scotland and its attitude to the Bill. Will she be kind enough to write to me about that decision, which I had not heard about before and which came as a bit of a bombshell tonight? Could she explain what that piece of legislation means in terms of BTP operation in Scotland? Obviously, the law relating to level crossings is fine and we have no disagreement on that. However, it strikes me as very odd indeed that Scotland may not be willing to accept such a simple change as the one we are proposing.
In the mean time, I beg leave to withdraw the amendment.
Amendment 53A (to Amendment 53) withdrawn.
Amendment 53 agreed.
Amendments 54 and 55 not moved.
Clause 16: Invasive non-native species
56: Clause 16, page 10, line 20, leave out from beginning to “this” in line 21
My Lords, this group of government amendments addresses concerns expressed in Grand Committee and by stakeholders regarding the scope of these provisions and the definitions used in the new Schedule 9A. Concern was expressed that the scope of these provisions extended beyond non-native species to include eight native species that are listed in Part 1 of Schedule 9 to the existing Wildlife and Countryside Act 1981, as well as former native species such as the wolf, lynx, brown bear or beaver. There was also concern expressed around the definitions used in the new schedule, which would have categorised those eight native species and former native species as non-native.
In response to these concerns, we have decided to make a number of changes to clarify the scope and definitions. First, we are proposing to remove entirely from the scope of the new provisions the eight native species listed in Part 1 of Schedule 9 to the Wildlife and Countryside Act 1981. Although it was never our intention to use these provisions for these species, these changes will make this clear. Secondly, our proposed changes will clarify that former native species—species which were once present in this country but which are or have been absent for a period—should be categorised differently from non-native species for the purposes of these provisions. We are, therefore, making structural changes to the new schedule to make it clear that these species are distinct from non-native species.
Thirdly, we are limiting the scope of the provisions so that the powers can be applied to these former native species only when they have been reintroduced into the wild unlawfully, without the appropriate licence from Natural England or Natural Resources Wales. We recognise that in some circumstances reintroductions can be merited and desirable. Our amendments will mean that where these animals have been reintroduced lawfully following full consideration of their likely impacts by the licensing authority, those animals are out of scope of these powers.
To achieve these aims, we have had to table a number of government amendments. I hope that your Lordships recognise that these changes result from our desire to respond positively to issues raised during Grand Committee and by stakeholders. We have been working closely and constructively with stakeholders to refine the provisions.
I turn to the amendments themselves. The purpose of Amendment 56 is to remove references in the overview section of Schedule 9A that suggest that these measures relate only to invasive non-native species. This and later amendments clarify that these provisions extend to former natives where they have been unlawfully introduced. Amendment 57 clarifies in the overview section that these provisions apply to two distinct groups—invasive non-native species and former natives.
We are describing former natives in the schedule—I am using plain English but we are being very careful with the wording in the document—as,
“a species of animal that is no longer normally present in Great Britain”.
This is in response to stakeholder concerns that the term “former native” might send out an unhelpful signal about the status of native species that have been lost to Great Britain, particularly given international obligations requiring us to consider the reintroduction of these species.
Amendment 58 removes the current definition of “non-native” in the new schedule based on Section 14 of the Wildlife and Countryside Act 1981. It replaces it with one which clarifies that a non-native species is one whose natural range does not include Great Britain or such a species which is present here only having been introduced by human activity. This clarifies that former native species are not caught by this definition as their natural range includes Great Britain, even though they may have ceased to be normally present.
Amendment 61 provides the definition of a former native, which is a species either listed in Part 1B of Schedule 9 or whose natural range includes Great Britain, although the species has ceased to be ordinarily resident. Part 1B is a new part of Schedule 9 and will include reintroduced former natives now considered to be resident whose release into the wild still requires consideration and regulation. Only wild boar currently falls into this category, although it is possible that other species could be added to this list in the future, such as the European beaver.
Amendments 62, 63, 64 and 77 are consequential amendments. For simplicity, the new schedule would now refer to “species” rather than copying out the definitions of the two categories of species—non-native and former native.
Amendments 65 and 67 clarify that species control agreements and orders can be entered into where an environmental authority considers that either an invasive non-native species or an unlawfully released former native is present on the premises. As currently drafted, the schedule refers only to invasive non-native species.
Amendments 66 and 71 limit the making of an agreement or order in relation to former native animals to those which are present on premises without the appropriate licence from Natural England or Natural Resources Wales. This means that, where former natives have been reintroduced lawfully following full consideration of their likely impacts by the licensing authority, those animals are out of scope of these powers.
These amendments also introduce an additional requirement that the environmental authority must satisfy before seeking to enter into an agreement or order in relation to former natives. This is that the environmental authority must be satisfied that there is no appropriate alternative way of addressing the adverse impact from the animals. This will provide an additional check on the use of these powers in regard to this category of species.
Amendment 84 separates Part 1 of Schedule 9 into three distinct categories of species—native, former native and non-native. This allows us to remove all native species entirely from these provisions and ensures that they may be applied to former natives only where they are present on premises without the necessary licence. Section 14 of the 1981 Act will continue to apply to all these species and therefore a licence will still be required for their release into the wild.
Amendment 86 serves two purposes. First, it makes consequential changes to the Wildlife and Countryside Act 1981 by amending Sections 14 and 22 so that they both now additionally refer to the new Parts 1A and 1B of Schedule 9. Secondly, Amendment 86 addresses an anomaly in the titles to the already existing Sections 14ZA and 14ZB of the 1981 Act, which deal with the ban on the sale of certain species and codes of practice respectively. Both titles currently refer only to “invasive non-native species”, but technically the scope of both sections already extends beyond this category of species to both former natives and those native species on Schedule 9. The changes that we propose to the titles clarify this point.
My Lords, I speak to Amendments 59 and 60, and to indicate to the Minister that we support the clause but that there are a few issues that we wish to take further. We recognise the extent to which the Minister has responded to the contributions that were made in Committee about these issues. The Bill is much better drafted as a result of her amendments—or will have been better drafted after her amendments have been accepted—than it was when we saw it in Committee. We acknowledge the changes in the Government’s position on the meaning of “native” and “non-native”, and we thank the Minister for taking our comments in Committee on board on this important issue.
The current language in the Bill could have significant adverse effects on biodiversity. We recognise the necessity to protect against invasive and non-native species, but it is also important that we see the extent to which biodiversity is protected in a world where there are many restrictions and anxieties about the reduction in biodiversity. I am particularly concerned about the omission of certain species from the Bill and the fact that the Bill, as it stands, takes no account of the protection afforded to native species such as the beaver.
The habitats directive, which is an EU directive adopted in 1992 and is one of the EU’s two directives relating to wildlife and nature conservation, aims to protect some 220 habitats and approximately 1,000 species listed in the directive’s annexes. These are species and habitats considered to be of European interest, following criteria given in the directive. Article 12 of the directive states that all the species listed in its Annexe IV require strict protection in their natural range, and the species listed in this annexe include the European beaver. We are concerned that the Minister appears to give no recognition to this fact. There are growing concerns around the UK and Europe that the habitats directive is being undermined or is not being fully or properly implemented. Therefore, it is important to highlight the legal protection that it provides for particular species.
The amendments that the Government have put down are, of course, welcome, and I appreciate the extent to which the Minister has listened to the work of the Committee. However, they introduce a possibility that native species can be placed on a list of difficult animals and so can receive species control orders. For example, the absence of native species such as the beaver from Part 1A is worrying, as is the inclusion of the wild boar in Part 1B. Wild boar is clearly now being re-established as a significant species in the United Kingdom, and I want to make the case with regard to the beaver. Amendment 85 adds beavers to the list of native animals. We are aware that some consider the beaver to be recently introduced, but archaeologists have discovered remains of beavers that go back over a considerable period of time. It is true that they largely died out 500 years ago, although the most recent known reference is in the late 18th century. Within Great Britain, there are currently several populations of beavers, one in Devon and two separate populations in Scotland. One of those, in Argyll, is an official trial reintroduction, which is due to conclude in 2015. The other two are made up of beavers that have likely escaped from wildlife centres and begun to breed.
In 2011, Scottish Natural Heritage estimated that there were at least 39 groups of beavers in the River Tay area and they are reportedly spreading into other river systems. It is therefore clear that beavers are already living wild in the UK in significant numbers and are well established in this country. To date, there have been 157 beaver reintroductions throughout Europe and there are now free-living populations in around 30 European countries, including our neighbours the Netherlands, Belgium, France and Denmark.
As it currently stands, the Bill would classify beavers are “not ordinarily resident” and would allow them to be controlled by techniques aimed at invasive species. This takes no account of the fact that beavers are a native component of British wildlife, as I have sought to demonstrate, and I hope that the Minister will respond to those points when she comes to sum up.
Finally, on our Amendment 80, we are concerned about,
“the standards of animal welfare required when carrying out species control agreements and orders”.
We recognise that the Minister has moved a great way to accepting that definition and I record our appreciation of that point at this late juncture.
My Lords, like the noble Lord, Lord Davies, I thank the Government for the large number of amendments and the movement that has been secured by the Minister and civil servants since we met in Grand Committee. We are all in support of the Government’s intention to deal with the problem of non-native invasive species, but we were concerned about some of the possibly unintended but nevertheless serious consequences of some of the wording around non-native. I will not repeat the arguments because the time is late, but I am particularly pleased that the Government have, through these amendments, addressed those particular issues of definition and that the native species that were wrongly classified as non-natives have been moved into a separate section.
However, another area of concern was the potential for this legislation to impact on future reintroductions of formerly native species that could have important benefits for biodiversity targets and people’s experience and appreciation of nature. We are all opposed to unlicensed reintroductions but question marks still remain over the ability of control orders to apply, for example, to formerly extinct animals that naturally recolonise here. I accept that getting definitions to cover all these potentialities is extremely difficult and it may be asking too much for the Bill to cope with that. Therefore, it was extremely reassuring in Committee to hear the Minister say that control orders would be looked at on a case-by-case basis. However, it is equally key that the code of practice is used to set out the intent of the limited use of control orders. I am therefore pleased that the Government have moved to ensure full public consultation on the code of practice. The opportunity to give further reassurances about the use of control orders could be done by more expansively setting out their proposed limited use therein.
I have a question about Amendments 84 and 85, tabled by the noble Lord, Lord Davies of Oldham. Proposed new Part 1B amends Schedule 9 to the Wildlife and Countryside Act to include animals no longer normally present. The addition by the noble Lord, Lord Davies, of the beaver prompts me to ask the Minister, like him, what criteria the department are using to select just wild boar to be included in the proposed new Part 1B. I invite the Minister to say a few more words in her summing up about the criteria that would be used to assess any other species that might be added. As she said, the beaver might be one of those. It is important that we are clear about the criteria before we move forward.
My Lords, I add my thanks to the Minister for her amendments, which have removed some of the anomalies that resulted from the original drafting. I commend the Government for the principle of tackling in legislation, at long last, the issue of invasive non-native species—something that has been called for for many years. We are nearly there but it does need some further improvement. However, I join the barn owls, red kites and corncrakes in thanking the Minister for the progress made so far.
However, in common with many other noble Lords tonight, I am rather unclear about the Government’s intentions as other changes created by the new drafting seem to have some adverse aspects. They stem, for the most part, from the move from the original intention of this clause in the Bill as it was first drafted, which was to address the problem of invasive non-native species. That was very much stressed in the Explanatory Notes. However, the debate in Committee and the amendments as they have come forward seem to indicate that the clause is now seen as being wider than its original intent of simply addressing invasive non-native species, and that it could include the control of some species that I would regard as de facto native. The crux of this is the tricky new category of “no longer normally present”.
If I understand it correctly, the effect of the amendment would mean that it would still be possible to apply control orders to native species. This might be appropriate for those unlicensed reintroductions that have proven problematic in some circumstances, but the clause rather goes beyond that. It specifically introduces, in new Part 1B of Schedule 9 to the Wildlife and Countryside Act, the category of species not normally present, into which boar has been placed. I agree with other noble Lords that we need some clarity about why boar was selected, and what criteria would be used were other species to be added to this part of the schedule in the future.
We also have to be mindful of EU legislation. It is important to understand how this provision would sit with Article 12 of the habitats directive, which gives special protections to species within their natural range, listed in Annex IV, regardless of how they arrive there. I ask whether it is really the Government’s wish to apply control orders to animals that have formerly been present in Great Britain and have naturally recolonised this country. A consequence of the “no longer normally present” definition could be that an animal that has been extinct in Great Britain but starts to recolonise the country could be subject to a species control order.
Even though it is this time of night, I will briefly commend the spirited support for the beaver by the noble Lord, Lord Davies of Oldham. The beaver is an excellent creature, which one could have said was no longer normally present for a while, but it appears to be very much present and breeding like beavers at the moment. I will correct some of the misapprehensions that arose in discussions about the beaver in Committee. The European beaver is extremely different from the North American beaver. It does not build whacking great dams and it does not create floods. In fact, it is one of the most perfect managers of mosaics and beautiful habitats that I have ever seen. If noble Lords get a chance to go and see a habitat as managed by a European beaver in Scotland or, indeed, any of the other places where it is popping up and breeding well, do go. It is a delight. Certainly, I cannot imagine the circumstances in which a vegetarian animal, which creates no damage, could possibly ever be subject to a control order.
To conclude, I am grateful that the clause is now better, but a little extra push could get us all the way. In particular, I urge the Minister, as well as answering my points, to tell the House why the Government want to extend the purpose of the clause beyond invasive non-native species and what they are trying to achieve through the definition of “no longer normally present”.
I hope that the Government will address those issues; if not now, when the Bill proceeds to the other place.
My Lords, I have a fairly lengthy note here, so I will try to abbreviate it by cutting to the chase. The issue that seems to be at the heart of the various comments made is whether there should be no constraint at all on the reintroduction of species that are—let us use the plain English—formerly native. We are careful in the Bill to use a term that works better at international level, but it is two sentences long.
Our concern here is that such species should be reintroduced, if they are, in an orderly way, through the process established by Natural England and Natural Resources Wales, which provides for a licensing system. One reason why our wild boar are the only creature on Schedule 9 is that, although obviously they once lived extensively across these islands, they disappeared due to hunting and were re-established in the wild as a result of unlawful releases. They did not come by themselves, so we are putting them into the category of formerly native.
They are a good example, because there are places where wild boar may be entirely appropriate, and Natural England can make that judgment. There will be other parts of the country where there might be a decision that it is not appropriate to reintroduce them for a whole variety of reasons. Beaver falls into the same category in many ways. The noble Baroness, Lady Young, described the beaver as an entirely amiable creature. Unfortunately, some beavers carry a potentially deadly zoonotic disease known as EM. Those Members of this House who have seen what that can do to other animals and to people will recognise that it is important to have an assurance that we are not bringing that disease into this country.
There is a proper process for lawful reintroduction. An application for their reintroduction into the River Otter in Devon has just been submitted to Natural England by the Devon Wildlife Trust. That is awaiting a decision. There was mention of the trial reintroduction currently under way in Scotland. There is a mechanism that ensures that we can bring creatures back in such a way that we are sure that it is appropriate.
I just point out that if I were to follow through with the generic language that has been requested, there would be no limit on bringing back lynx, bear and wolves. Those creatures might be appropriately brought back under certain circumstances, but I would think that to be able to bring them back freely would strike terror into the hearts of most ordinary people. There is an appropriate place for control orders, used in conjunction with the existing structure for licensing reintroduction. That is what we have attempted to do through all the various juggling of schedules: to ensure that we distinguish invasive non-native species. I think that there is no dispute that the control order should apply there. Where we have a species that is formerly native, it should go through the appropriate process where bodies can make the appropriate judgment for reintroduction. Brought in lawfully, control orders would not apply. That is the thinking behind the provision. I think that it has now being broadly accepted that that is a rational way to proceed.
For those reasons, I ask that your Lordships support the government amendments and do not press the other amendments.
Amendment 56 agreed.
57: Clause 16, page 10, line 25, at end insert—
“( ) A species control agreement or species control order may relate to—
(a) an invasive non-native species of animal or plant, or(b) a species of animal that is no longer normally present in Great Britain.This is subject to the other provisions of this Schedule.”
Amendment 57 agreed.
I should perhaps warn your Lordships that if Amendment 58 is agreed to I cannot call Amendment 59 by reason of pre-emption.
58: Clause 16, page 10, line 36, leave out from “is” to end of line 37 and insert “a species—
(i) whose natural range does not include any part of Great Britain, and
(ii) which has been introduced into Great Britain or is present in Great Britain because of other human activity.”
Amendment 58 agreed.
Amendments 59 and 60 not moved.
Amendments 61 to 71
61: Clause 16, page 11, line 2, at end insert—
“Species that are no longer normally present in Great Britain2A A species of animal is “no longer normally present in Great Britain” if—
(a) it is a species listed in Part 1B of Schedule 9, or(b) it is a species—(i) whose natural range includes all or any part of Great Britain, and(ii) which has ceased to be ordinarily resident in, or a regular visitor to, Great Britain in a wild state.”
62: Clause 16, page 11, line 25, leave out “an invasive non-native” and insert “a”
63: Clause 16, page 11, line 26, leave out “an invasive non-native” and insert “a”
64: Clause 16, page 11, line 27, leave out “an invasive non-native” and insert “a”
65: Clause 16, page 11, line 36, leave out “an invasive non-native species to be present” and insert “that there is present on the premises—
(a) an invasive non-native species, or(b) a species of animal that is no longer normally present in Great Britain.”
66: Clause 16, page 12, line 5, at end insert—
“( ) Before entering into a species control agreement relating to animals of a species that is no longer normally present in Great Britain, the environmental authority must also be satisfied that—
(a) the animals are present on the premises otherwise than under and in accordance with the terms of a licence under section 16(4)(c),(b) the animals on the premises are having a significant adverse impact on—(i) biodiversity,(ii) other environmental interests, or(iii) social or economic interests, and(c) there is no appropriate alternative way of obviating that impact.”
67: Clause 16, page 12, line 32, leave out from “that” to end of line 33 and insert “there is present on the premises—
(i) an invasive non-native species, or(ii) a species of animal that is no longer normally present in Great Britain, and”
68: Clause 16, page 12, line 36, at beginning insert “the environmental authority considers that”
69: Clause 16, page 12, line 37, at end insert “and, having been given notice to that effect and a reasonable opportunity to rectify the failure, has not done so”
70: Clause 16, page 13, line 3, at end insert “and the authority considers it unlikely that the owner will enter any kind of such agreement”
71: Clause 16, page 13, line 14, at end insert—
“( ) Before making a species control order relating to animals of a species that is no longer normally present in Great Britain, the environmental authority must also be satisfied that—
(a) the animals are present on the premises otherwise than under and in accordance with the terms of a licence under section 16(4)(c),(b) the animals on the premises are having a significant adverse impact on—(i) biodiversity,(ii) other environmental interests, or (iii) social or economic interests, and(c) there is no appropriate alternative way of obviating that impact.”
Amendments 61 to 71 agreed.
72: Clause 16, page 14, line 7, after “is” insert “withdrawn or”
My Lords, I apologise. The late hour is completely turning my brain to pulp and it was not that great to begin with.
To address the issues raised in Grand Committee we have tabled four amendments in respect of the English and Welsh codes of practice that accompany the provisions. Amendments 79 and 82 ensure that the codes of practice must set out standards of animal welfare to be applied in respect of species control operations under agreements or orders. Amendments 81 and 83 ensure that a public consultation on the codes of practice will be carried out before they are issued. As currently drafted, only the Secretary of State and Welsh Ministers are required to consult the environmental authorities.
Additionally, we wish to make four minor and technical amendments. As currently drafted, where an owner appeals against an order, they are not required to carry out any operations specified in that order until the appeal is finally determined by the tribunal. Amendment 72 clarifies that where appeals are brought, the period of suspension of the need to carry out operations will come to an end when the appeal is determined by the tribunal, or the owner withdraws the appeal. As currently drafted, there is no reference to withdrawing an appeal.
Amendment 73 removes the time limit for making an appeal to the First-tier Tribunal, against an order, from this legislation. Time limits are governed by the tribunal’s statutory procedure rules, so it is not appropriate for these to be duplicated in these provisions. We can, however, set out the time limit that applies in the codes of practice to provide clarification for owners.
The financial penalty for offences under these provisions was drafted on the assumption that Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which provides for an unlimited fine, would come into force before these provisions would be commenced. It is now uncertain that this will be case. Amendment 76 therefore clarifies that where an offence has been committed, the current penalty, a fine not exceeding £40,000, will apply until Section 85 is commenced. Amendment 78 clarifies that the Secretary of State and the Welsh Ministers may make joint or separate arrangements for the payment of compensation to an owner. This is to ensure clarity on this issue, should it arise.
My Lords, on behalf of the House, though there is almost no one here to hear it, I thank the Minister and civil servants for listening to those of us in Grand Committee who argued particularly on two issues. First, this is a controversial subject. As I said earlier, we all agree that we need to control non-native invasive species, but the range of views among stakeholders is controversial. That the code of practice will be open to full public consultation, which was not in the original Bill, is a very welcome initiative. Equally, I am grateful that Peers had the opportunity to see the draft of those codes of practice before Report. That was extremely helpful.
Secondly, the other issue to which the noble Lord, Lord Davies, referred earlier is the fact that the Bill now rightly includes humane standards of dispatch for any animals which are subject to control orders. That was a large oversight which has been rightly rectified. If animals are going to be controlled, as some will have to be, it should be done with minimum suffering, pain and distress. It is to the credit of this coalition Government that that has been included.
I add my congratulations. I contributed to this debate in Grand Committee. It is good to see that a great deal of listening has taken place and some practical action has occurred. I am impressed that the Minister is also such an expert on areas such as non-native invasive species. The fact that a lot of these issues have been resolved is a good example of how government can work with the House to resolve important issues such as this one. Given globalisation, this area will grow in importance as the years go on. It is important that we get it right now. I congratulate the Minister on what she has managed to achieve.
My Lords, the Minister might have expected the odd congratulation from her own supportive Benches, although whether she would get the same commendation after Christmas as we get closer to the general election is a different matter altogether. However, from these Benches I also congratulate the Minister on the extent to which she listened and responded to the points made in Committee. This is one of the few occasions on which I have tabled an amendment and then seen the Government table an amendment which is as close to being identical as one could have. Therefore, talk about taking the wind out of my sails—I was actually breathless and unable to carry on with my comments. I end on that, I hope, helpful point.
We on these Benches have great admiration for the work that the noble Lord, Lord Davies, has done on this part of the Bill. He made excellent speeches in Grand Committee.
Amendment 72 agreed.
Amendments 73 to 79
73: Clause 16, page 15, leave out lines 8 and 9
74: Clause 16, page 15, line 16, at end insert—
“Notice of compliance15A Where an environmental authority considers that an owner of premises has complied with all the requirements in a species control order to carry out species control operations, the authority must give the owner notice to that effect.”
75: Clause 16, page 15, line 21, at end insert—
(1A) The authority must give the owner notice to that effect.
“(1B) Sub-paragraphs (2) to (4) apply if, after a week after giving notice under sub-paragraph (1A), the authority considers that the owner has still not carried out the species control operation in the way specified in the order.”
76: Clause 16, page 16, line 3, at end insert—
(5) In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in sub-paragraph (3) to a fine is to be read as a reference to a fine not exceeding £40,000.”
77: Clause 16, page 16, line 33, leave out “an invasive non-native” and insert “a”
78: Clause 16, page 18, line 10, after “may” insert “(separately or jointly)”
79: Clause 16, page 18, line 30, at end insert—
( ) standards of animal welfare to be met in connection with species control agreements and orders.”
Amendments 73 to 79 agreed.
Amendment 80 not moved.
Amendments 81 to 83
81: Clause 16, page 18, line 33, leave out “consult the other environmental authorities in England” and insert “carry out a public consultation”
82: Clause 16, page 19, line 11, at end insert—
( ) standards of animal welfare to be met in connection with species control agreements and orders.”
83: Clause 16, page 19, line 14, leave out “consult the Natural Resources Body for Wales” and insert “carry out a public consultation”
Amendments 81 to 83 agreed.
84: After Clause 16, insert the following new Clause—
“Native and non-native species etc
(1) Schedule 9 to the Wildlife and Countryside Act 1981 (animals and plants to which section 14 of that Act applies) is amended as follows.
(2) In the heading to Part 1, at the beginning insert “Non-native”.
(3) In Part 1, omit the entries relating to the wild boar, capercaillie, chough, corncrake, common crane, white-tailed eagle, goshawk, red kite and barn owl.
(4) After Part 1 insert—
“Part IANative animals Common name Scientific name Capercaillie Tetrao urogallus Chough Pyrrhocorax pyrrhocorax Corncrake Crex crex Crane, Common Grus grus Eagle, White-tailed Haliaetus albicilla Goshawk Accipiter gentilis Kite, Red Milvus milvus Owl, Barn Tyto alba”.
“Part IBAnimals no longer normally present Common name Scientific name Boar, Wild Sus Scrofa.””
Amendment 85 (to Amendment 84) not moved.
Amendment 84 agreed.
86: After Clause 16, insert the following new Clause—
“Species control agreements and orders: supplementary
(1) The Wildlife and Countryside Act 1981 is amended as follows.
(2) In section 14 (introduction of new species etc), in subsection (1)(b), after “Part I” insert “, IA or IB”.
(3) In the heading to section 14ZA (sale etc of invasive non-native species), for “invasive non-native species” substitute “certain animals and plants included in Schedule 9”.
(4) In the heading to section 14ZB (codes of practice in connection with invasive non-native species), for “invasive non-native species” substitute “species which are non-native or included in Schedule 9”.
(5) In section 22 (power to vary Schedules), in subsection (5)(a), after “Part I” insert “, IA or IB”.”
Amendment 86 agreed.
Consideration on Report adjourned.
House adjourned at 9.58 pm.