Natural Environment and Rural Communities Bill

Public Bill Committee, 28 June 2005.

Natural Environment and Rural Communities Bill - Standing Committee A

Clause 40 - Duty to conserve biodiversity

Colin Breed (Liberal Democrat, South East Cornwall)

I beg to move amendment No. 103, in clause 40, page 13, line 34, leave out from ‘functions’ to end of line 36 and insert

‘further the conservation of biodiversity, so far as is consistent with the proper exercise of those functions’.

Eric Forth (Conservative, Bromley and Chislehurst)

With this it will be convenient to discuss the following amendments:

No. 2, in clause 40, page 13, line 34, leave out ‘have regard’ and insert ‘aim to further’.

No. 127, in clause 40, page 13, line 34, leave out from ‘have’ to end of line 36 and insert

‘a duty to further the conservation of biodiversity, so far as is consistent with the proper exercise of those functions’.

No. 3, in clause 40, page 13, line 35, leave out ‘to’.

Colin Breed (Liberal Democrat, South East Cornwall)

Good morning, Mr. Forth, and I welcome everyone on this lovely, bright, sunny day. What better day could there be to consider the Bill and biodiversity, which is the thrust of the clause and our amendments? I hope that the amendments that we have tabled are helpful. We welcome the duty on every public body to conserve biodiversity, but we would like it to go a little further than to “have regard” to biodiversity. Our amendments would strengthen the duty, and would have the added benefit of bringing England and Wales into line with Scotland in this respect.

We know that local authorities already have an important role in biodiversity when considering aspects of their work, such as planning. Planning is very much at the heart of local authority work these days, involving a tremendous amount of engagement with the public and business. Local authorities generally have become much more aware of the need to conserve biodiversity, and some have been proactive in that respect. When planning applications are submitted, particularly for large developments, sensible applicants already ensure that they have regard to biodiversity matters, but we want local authorities to have an enhanced role in that respect.

Many local authorities also own large pieces of land, or have control of them in one way or another. I am thinking of my own county and county farms: the way in which farm land is used where the county is the landlord and tenants are required to manage and run those farms with regard to biodiversity. When local authorities receive applications for funding for various matters, they should consider what effect those applications may have on biodiversity.

I am aware that many local authorities are excellent; they are proactive. They are looking for this role and in many respects they have already undertaken what is set out in the provisions of the clause. My local authority, Cornwall county council, has been at the forefront of that process. Some three years ago it set targets in conjunction with Cornwall Wildlife Trust on 100 identified wildlife sites, 60 of which were owned by the council with a further 40 in private ownership. Those were identified as sites that were worthy of enhancement and I am very pleased that we are well on target, so that by March next year those sites will have been enhanced and the biodiversity will be much improved.

It would be true to say that other authorities are less active and less concerned, so the picture around the country is rather patchy. There are some very good local authorities and some that are much less so. We want to bring all those authorities up to the level of those that offer best practice.

The Cornwall Wildlife Trust supports our amendments and has helpfully provided a rather useful briefing, which may have been supplied to others. It properly highlights three distinct roles for our local authorities, which I think are worth reading into our deliberations because they are important aspects. First, there is the aspect of information on biodiversity. Before a local authority can introduce beneficial policies, it needs to identify the sites and areas that are locally important, which have real potential for enhancement or restoration. That takes a great deal of work and the trust ought to be commended for the work that it has done in this respect because authorities need to have that information at their fingertips to put into place policies that they would like to introduce. The logical place to hold, maintain and provide access to this information is a local records centre, and local authorities are one of the key partners being encouraged by the national biodiversity network to support both centres and to support those collecting the biodiversity information.

The Minister will forgive me for reiterating some of what we said a sitting or two ago about the role of local authorities. Their role would be complemented if they were to undertake some of the measures that are destined for the Commission for Rural Communities.

I spoke before about sites of special scientific interest, and the Minister knows that in the previous Session, the Select Committee considered SSSIs and the way in which so many of them had been regretfully damaged beyond repair. Local authorities are advised to give a high degree of protection through the planning system to SSSIs, and that includes using policies within their local development frameworks to protect and enhance them. It is important to enhance the sites’ usefulness, and not just to protect them and keep them as they are. Protection through the planning system and through the strengthening of schedule 9 of the Countryside and Rights of Way Act 2000, coupled with a commitment from the Government to get 95 per cent. of SSSIs in a favourable condition by 2010, will create a relatively strong status for SSSIs.

However, SSSIs represent only a sample of our nationally important sites, with many priority habitats and species falling beyond their boundaries. That was recognised by Cornwall county council: it was not just the SSSIs, of which there are a considerable number in Cornwall, but many other sites that were of great interest and that needed to be protected.

Local sites have a lower hierarchical position. No significance is placed on their quality, nor on their contribution to nature conservation objectives, despite many being of equal calibre to SSSIs. For sites to be special, there should be relatively few of them in a category of special scientific interest. We all recognise, however, that underneath that category a huge number of sites are gradually being eroded or damaged. Local biodiversity action plans are an important part of any community strategy that local authorities should have a duty to prepare under Government legislation.

We welcome the clause, but if the Minister were to go that little bit further and bring us into line with Scotland, that additional duty would be provided for. Many local authorities need that extra push. Some are performing well and going well beyond what they already need to do; but many others are prepared to do only what they have to do. They may interpret some of the wording of the clause as having “regard to” it, but as little else. We would like to see the enhanced duty placed upon those local authorities.

Madeleine Moon (Labour, Bridgend)

During the previous two days of discussion in Committee, it has been interesting to hear how different Members have represented their rural communities. We have heard from the hon. Member for South-East Cornwall (Mr. Breed) about the idyll of rural communities in Cornwall, and we have heard about the tremendous variety of mining villages from my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith). May I add my endorsement of the beauties of the Sheffield area? My son is at university there, and I had never previously visited the area. We now regularly stay on a farm in the midst of nowhere outside a village called Hathersage, where we are 15 minutes from the centre of Sheffield, and it is absolutely glorious. I can assure those people who are concerned about the setting of Sheffield, that its environmental setting is a good representation of the United Kingdom’s diversity.

On Friday, I visited a rural village in my constituency. Cornelly is not what many people would think of as a rural community; there are certainly no roses round the doors or ponies trotting through the streets. Many people live in council housing and work in the steel works at Port Talbot, in the neighbouring constituency. One would not think that the word “biodiversity” was on everyone’s lips, but at a question-and-answer session with the children, who are planning to come to Parliament in a few weeks’ time, I was asked—the question was like a gift, and one might have thought that I had planted it—“What are you going to do as a Member of Parliament to protect different species?”

That might seem a bizarre question coming from someone in Cornelly, given the way in which I have described it, but I have not told hon. Members that Cornelly is on the borders of Kenfig national nature reserve, which is a European site of nature conservation. As a result, the people of Cornelly are very conscious of biodiversity and of our responsibility for protecting the local habitat; to them, it is their local habitat—their local playground. Indeed, it is also the last remaining site of the sand dune systems that once stretched along the south Wales coast. It is therefore a rare habitat, and the biodiversity is of European importance.

When I told the children about my involvement in this Committee and about the clause, they were particularly interested. For them, biodiversity is not an academic, obscure issue: it is something that they see daily as they walk around their community. For them, it is precious, and they want the Committee to take responsibility for its conservation.

In previous speeches, the hon. Member for South-East Cambridgeshire (Mr. Paice) has mentioned the role of local authorities, and the hon. Member for South-East Cornwall has reiterated the point today. However, it is perhaps not generally recognised—I received this statistic from the Association of Local Government Ecologists—that 60 per cent. of local authorities in England do not employ an ecologist or have access to professional advice and information. Despite long-standing central Government advice and guidance, many of them are still not aware of their statutory obligations for biodiversity.

That is a frightening fact. It is frightening that many development plans for managing landscape features—local authorities have had responsibility for such things since 1994—still do not include sections on the management of flora and fauna. They pay no regard to that and contain no information about the biodiversity features in the local authority.

It has been recognised that planning will play a major role in meeting European and international targets on biodiversity loss by 2010. Yet local authorities’ performance varies greatly, as the hon. Member for South-East Cornwall mentioned. Not all of them have links with their local recording groups, so they do not know who the local bird recorder, the local moth recorder or the local plant recorder is. They certainly do not have an established local records centre to co-ordinate the information that many of them need. I am very fortunate because such things are in place in my local authority, but even when they are in place, there are still battles on the planning committees.

Our local authorities do not always conduct biodiversity action planning, something else mentioned by the hon. Member for South-East Cornwall. Some areas are not even designated sites of interest for nature conservation. That can have a tremendous impact for the protection of sites when planning applications are made. An example from my constituency is Kenfig hill; whereas in Bridgend the local authority has many areas designated as sites of interest for nature conservation, across the border the neighbouring authority has none.

Hafod Heulog wood is an ancient woodland with no designated protection. An application has been made to the two local authorities for the extension, yet again, of an open-cast mine, which would wipe out the wood. The neighbouring authority knows nothing at all about what is in the site, but the local community is adamant that it wants to protect biodiversity and is aware of species that it wants protected, including butterflies and mammals. What is important—my reason for tabling this probing amendment—is that we should have a duty on local authorities not just to conserve but to further biodiversity. To date, many are not carrying out those duties. Reports to development control and planning committees contain a presumption in favour of developers. The presumption is people first.

I cannot tell the Committee how many planning committees I sat on when I was a local authority member in which the local member would say, “We don’t have to worry about a butterfly: I need this housing estate.” A member might take the same view about a particular mammal, or about great crested newts, and the reason would be, “I want a rugby academy,” or “I want my golf course extended.” I have heard all that over and over. Because there is not necessarily a demand that local authorities should have a duty to further biodiversity, many are able to disregard it.

Biodiversity is poorly integrated into other local authority departments. It is at its best in the leisure and highways departments’ grass-cutting regimes. We have, fortunately, seen an end to the sterile landscape of bowling green road verges. Increasingly, those areas are allowed to grow. Local authorities have grasped that responsibility, largely because it saves them money, but a side effect has been improved habitat opportunities. I wonder how many members of the Committee could say how many butterflies or flying insects they saw as they went about their constituencies this weekend, which was beautiful, with glorious sunshine. The increasing sterility of the environment in my constituency frightens me. It will have an effect on young people. If they do not regularly see the creatures and habitats that we know we need to protect, they will pay less and less regard to them.

I tabled amendment No. 127 because the words in the Bill will enable local authorities to have regard to a matter and then move on. They will look at the issue, then say, “No, no. That development is more important than protecting the habitat.” It is important to re-emphasise the duty to conserve and give greater strength to what we seek to protect. In Scotland, that duty is already in place. I hope that it will also be placed on English and Welsh local authorities.

Tony Baldry (Conservative, Banbury)

With reference to the remarks that have just been made, I find it amazing that the economics of open-cast coal mining can justify environmental damage anywhere in England or Wales now, but perhaps that is a matter for Ministers other than the one present.

I have long been a supporter of the Berkshire, Buckinghamshire and Oxfordshire Naturalists Trust and am therefore instinctively predisposed to support any amendment that the Wildlife Trust puts forward. However, I am conscious that there is little to be gained from placing otiose burdens on local authorities, particularly if they are already doing the things concerned. As I understand it, local authorities already have a duty under the Local Government Act 2000 to produce local biodiversity action plans. I am bound to say that they are doing that.

If I may briefly trespass on the good will and patience of the Committee, I will describe what the local authority is doing in my constituency. Cherwell is an attractive part of England between Banbury and Oxford, along the valley of the river Cherwell, stretching across to the Cotswolds and areas such as Hook Norton—members of the all-party beer group will know it as the home of Hooky beer—and to Bicester and the Buckinghamshire borders. It is a conventional English district council authority. It has published its council biodiversity action plan and it has nine habitat action plans.

The council started that process by commissioning an ecological consultant to produce a precursor document, which councillors looked at and worked on. Priority habitats and species in the Cherwell district were detailed. The report considered the habitats and species listed in the UK biodiversity action plan and the Oxfordshire biodiversity action plan. It considered other local priorities and the work of the district council. Conservation of priority habitats and species was summarised.

However, all this is about more than just producing a biodiversity action plan. The district council has gone on not just to consult widely with local individuals, groups and organisations, which one would expect, but to fund local schemes through grant aid. For example, three organisations have been awarded grants by the district council towards local projects that are helping to improve sites for important habitats.

The Royal Society for the Protection of Birds has been given a grant towards habitat work on its reserve at Otmoor. If anyone ever has the opportunity to spend a little time in Oxford, they should visit Otmoor, which is about five or six miles away. It was the site that Lewis Carroll chose for the chess board in “Through the Looking-Glass”. It is an amazing area of fenland—one would never expect it so near to London. It was preserved because a lot of it was a training area for the Army during the war and afterwards. Not many walkers went there because they thought that they might get shot. That was quite a good way of preserving the habitat. It is now a phenomenal bird reserve. One would have to go up to the Cambridge fens or down to the Somerset levels or the Kent marshes to find anything comparable. The reserve is significantly increasing the amount of wet grassland, grazing marsh and reed bed in the district, all of which are important habitats in the UK. That is an example of the district council working with the Royal Society for the Protection of Birds to enhance and improve an important area of biodiversity.

Banbury Ornithological Society has been given a grant towards the creation of a nature reserve with full public access, and it intends to carry out some heathland restoration as part of the project. Heathland habitat is quite rare in Oxfordshire. The society has taken an 18-acre field near Tadmarton, which is a village next to the one in which I live. The field is well used by a wide range of farmland birds, including yellowhammers, reed buntings and skylarks.

The Cherwell biodiversity action plan includes an objective relating to heathland re-creation. A specific project is to identify farmland birds that are priority species. The nature reserve will be promoted once public access has been created.

A further grant has been given to Oxfordshire Geology Trust to create a geological heritage trail based on Deddington and the Barfords, which is a group of villages in the heart of the constituency, just where the Jurassic outcrop finishes. The trail will explain how local geology has influenced the local landscape, biodiversity, industry and history. The trust will work with schools and, also as part of the biodiversity action plan, with farmers and local landowners.

The district council has provided grant aid for some 2,000 m of hedgerow restoration, involving coppicing, hedge laying and replanting. That is in addition to schemes funded by various Government agencies.

My point is that the district council is quietly getting on with meeting the wildlife challenge for the district. It is working co-operatively with farmers, landowners, wildlife and nature conservation organisations, and delivering on its biodiversity action plan. Such work does not get much coverage in the local newspapers or elsewhere, but it is the sort of thing that is of real value. The district council is actually getting on and doing everything to further biodiversity that is being asked for in the amendment, and it is much to be congratulated and, I hope, encouraged in that.

Although the amendment is valuable, it seems slightly otiose. There is no point in placing on local authorities further burdens if they are already delivering on their duties adequately—indeed, better than adequately—and seeking to ensure that the biodiversity of their district is well respected and advanced.

David Chaytor (Labour, Bury North)

I support the amendment and particularly endorse the argument made by my hon. Friend the Member for Bridgend (Mrs. Moon). I should begin with a confession and admit that I have no connection whatsoever with Sheffield—I appreciate that that may put me at a slight disadvantage in this debate—other than living about 40 miles from it. I have not been to Sheffield in the past 30 years, but, after the comments from various hon. Members this morning and in previous sittings, I am determined to visit it and appreciate its beautiful countryside.

I should declare an interest as a member of the Lancashire Wildlife Trust. I am a strong supporter of its activities in my constituency.

I support the amendment not as someone from a constituency located in a rural area and which has enormous advantages but as one from a constituency that is primarily urban and suburban, albeit with a hugely attractive rural fringe. I pay tribute to the work in my constituency of the Lancashire Wildlife Trust and of the local authority itself, Bury metropolitan borough council, which has a strong record on sustainable development. It was the first local authority in the country to publish its own climate change strategy, for example, and one of the few actively to support the construction of an enormous wind farm, following the lead given to the campaign by a local Member of Parliament. I should mention that the wind farm will not be located within my constituency or the local authority’s boundaries—it is always easier if they are located within somebody else’s. Nevertheless, the council had the courage to support the recent proposal for the Scout Moor wind farm, and I am delighted that the Government were also able to endorse it.

Although I fully acknowledge that many local authorities do important work in biodiversity and I also acknowledge the crucial importance of SSSIs in the national conservation of biodiversity, it is important to recognise that if we are serious about engaging more people, especially more young people, in the cause of sustainable development generally and the conservation of biodiversity specifically, that will not be done by relying on the good nature of a small number of enthusiasts or of local authorities, nor on the preservation of our existing SSSIs.

Again, I recognise the important steps that were taken in the Countryside and Rights of Way Act 2000 to enhance the conservation of SSSIs, but the majority of people in this country live in urban or suburban rather than rural settings, and a long way from a SSSI. Most have no idea what a SSSI is, but many are concerned about local wildlife sites. They are extremely concerned about what happens in their backyard, both literally and metaphorically. That has been an issue in my constituency.

In fact, a great level of interest in local wildlife sites in a largely urban and suburban area led to the formation a few years ago of a unique political party, the Bury Wildlife party. Sadly, it was formed by two former members of my own party. They fielded candidates in elections and attracted considerable support, which was a measure of the interest in biodiversity among urban and suburban dwellers.

In areas such as mine, for 20, 30 years or more a considerable amount of former greenbelt has been concreted and tarmacked over to provide vast housing estates for affluent commuters who tend to work elsewhere in the Greater Manchester conurbation. The importance of wildlife sites and of furthering the conservation of biodiversity within such large suburban concentrations is extremely important.

There is a huge attraction for many people to move into the modern housing estates to the north of Greater Manchester on the fringe of the rural upland. Many people appreciate the convenience of living in those housing estates, the quality of the housing and the good access to the motorway network. However, living in a large suburban housing estate has its disadvantages. Increasingly, populations such as that represented by many of my constituents are beginning to realise the limits of suburbia.

The amendment would contribute to an increasing recognition of the limits of suburbia and a recognition that if we concrete over more of our greenbelt to concentrate large numbers of people in residential settings with hardly a blade of grass to be seen, we will ultimately reduce the quality of life to which many people aspire in the first place. Therefore, in addition to the significance of the national programme of conserving and enhancing SSSIs, we need to do far more work to designate and conserve local wildlife sites.

In recent years, we have had many successes in my constituency. Some sites were quite small; some were larger. Some were in areas that were protected from future development; some were in areas that were completely wild. Some were former industrial sites that have developed by accident as wildlife sites, through neglect; others were former reservoirs and mills which provided the water power for the factories that were first built in my constituency almost 200 years ago and have attracted a considerable amount of wildlife, again as a result of neglect.

The amendment is not otiose—I am generally against otiosity, if one can be. It is a constructive amendment, and it would help to concentrate the minds of more of our local authorities, particularly those in urban or suburban districts where it is too easy to assume that biodiversity is not an issue for them. I argue that biodiversity is an issue for all of us. It is particularly important that more people in the urban and suburban parts of Britain begin to understand this, and the amendment would contribute to that understanding.

James Paice (Conservative, South East Cambridgeshire)

I am warming to Sheffield, not least because the hon. Member for Bridgend (Mrs. Moon) says that she stays in a lovely farmhouse only 15 minutes from the centre. If one is 15 minutes from the centre in Cambridge, one is in the next street. Traffic must move more easily in Sheffield than it does in Cambridge. Be that as it may, Members on both sides of the Committee have made a great many important points. Like other hon. Members, I am a member of a local wildlife trust—in my case, the Cambridgeshire and Bedfordshire wildlife trust—and I strongly support the work that they do.

The hon. Member for Bury, North (Mr. Chaytor) has just crossed swords with my hon. Friend the Member for Banbury (Tony Baldry) about the word “otiose”. We do not have a problem with the desirability of biodiversity, and I am absolutely four-square with the hon. Members for Bury, North, for Bridgend and for South-East Cornwall, who clearly explained why it is desirable for local authorities to further biodiversity.

Moreover, the hon. Member for Bury, North is absolutely right about urban and suburban areas and the fact that biodiversity applies to us all. I merely flag up the slight concern as to whether it is right to push another duty on to local authorities rather than let them decide for themselves. I am taking a step back from biodiversity and looking at it from the wider perspective of letting local authorities make their own judgments and take their own decisions on all sorts of issues, which is something I feel strongly about.

I shall move an amendment later that also relates to the relationship between central Government and Parliament and the decision-making process of local government. I am a little wary of moving away from consolidating the duty to have regard to biodiversity to a duty to further the cause of biodiversity, not because I do not want biodiversity—I do—but because I am not sure that we should constantly push more definitive responsibilities on to local authorities.

Hon. Members on both sides have taken the opportunity to refer to projects and activities in their constituencies that show where local authorities are already furthering the cause of biodiversity. Like everyone else, I have my own examples. All hon. Members have probably received Wildlife Trust briefings, including one about the great fen project, which is close to my constituency and is restoring 3,700 hectares—almost 10,000 acres—of fenland from arable land to traditional fen.

The project involves Huntingdonshire district council working with the Wildlife Trust, English Nature and the Environment Agency. People often take the long way round when they are trying to restore the fen, rather than simply turning off the pumps and letting it all happen naturally, which they could do quite easily, because most of the fen is naturally drained. The only problem is that not a small number of my constituents could become homeless quite quickly, given the number of houses that are now below sea level.

The great fen project is a clear example of district councils working well and doing the job properly. I understand the impetus behind the amendment, and support the desire for local authorities to further biodiversity, but I am hesitant about Parliament imposing another duty on them and extending it further, rather than the quite proper way in which the Government are setting out to further biodiversity, which is simply to say that they must have regard to it. Beyond that, it should be a matter for local decision makers.

Paddy Tipping (Labour, Sherwood)

I start by saying that I am the vice-president of the Nottinghamshire Wildlife Trust, a privilege that I share with the right hon. and learned Member for Rushcliffe (Mr. Clarke), who knows a great deal more about bird life than I do. Perhaps I know more about wildlife than he does.

Clause 40 is an important new clause. I do not think that we should pass it without appreciating its significance. It builds on the work of the Countryside and Rights of Way Act 2000 and places a new duty on local authorities to have regard to biodiversity. It is the first time that such a duty has existed. That duty applies not just to local authorities but to public bodies.

Will the Minister confirm that regional development agencies are public bodies? I am sure that they are. If so, the new duty will apply to regional development agencies. A duty of sustainable development has already been placed on them, but I am not convinced that they always give that duty sufficient priority. Regional development agencies do good work. For example, the East Midlands Development Agency—EMDA—recently helped to fund the Nottinghamshire Wildlife Trust’s new visitor and entertainment centre at Attenborough nature reserve’s fine building. That is a specific project.

However, RDAs are particularly driven by economics and the notion of sustainability and biodiversity does not, to my mind, have high enough priority with the agencies. So I hope that the Minister will make it clear to RDAs that this new duty applies to them.

I join other hon. Members in commending the work of local authorities. There is a new vision and impetus in local authorities to consider biodiversity and, as my hon. Friend the Member for Bury, North said, to consider local wildlife sites in particular. Some local authorities are extremely good, but a survey of them all would find them to be patchy. The issue that the amendments address is straightforward. The hon. Member for South-East Cambridgeshire put it well. The question is whether the duty to conserve biodiversity is a passive duty that local authorities must have regard to, a thinking duty, or whether it is more action-oriented and the duty is to further biodiversity.

I will give some examples from my county, Nottinghamshire, in which the local authority should have done more. At North Muskham, Langold, Everton, North Leverton and in parts of Broxtowe, the bat population has declined because the local authorities have given planning permission for barn conversions and old buildings to become new residences without doing the necessary bat surveys. As a result, the mitigation that is necessary has not taken place. In each case, the local authorities would say that it did have regard to the issue of bats. That is the point of the amendment. Perhaps a duty to further biodiversity would have been helpful in those cases.

Another interesting example, and one that Parliament and all the parties in it have taken an interest in, is the removal of hedgerows. We are beginning to get a grip on that issue. When they are approved by local authorities, removal notices do not define the time of year in which such work should be done. A duty to further biodiversity would be extremely helpful in that regard; the local authority would be able to specify at what time of year the work should be done, so as to avoid bird-nesting seasons.

The duty of the local authority as land manager is also relevant. Most local authorities own substantial amounts of land. All the hon. Members who have spoken in the debate have, rightly, spoken about their areas and about the beauty of them. I will talk for a moment about Sherwood forest, which has been degraded over the years. Far too much of Sherwood forest is wall-to-wall conifer. If we went back to the days of Robin Hood, real socialism and redistribution—

David Chaytor (Labour, Bury North)

Why not?

Paddy Tipping (Labour, Sherwood)

My hon. Friend asks why not. Colleagues 100 yd down the road do not wish to do so. If we were to return to those romantic times—I make the point that Robin Hood came from Nottinghamshire, not from Barnsley or elsewhere in Yorkshire—

David Chaytor (Labour, Bury North)

Sheffield?

Paddy Tipping (Labour, Sherwood)

Not even Sheffield. I will praise Sheffield, but I will not give it that one.

If we were to return to those days, we would reintroduce more heath land and grassland. There has been some remarkable work at some of the old pit sites, such as Blidworth and Bevercotes; a piece of alchemy has transformed those mud heaps into a new greenwood—a new Sherwood forest of deciduous native woodland, and a fair amount of heath land.

It is important that local authorities acknowledge the importance of the provisions of clause 40. I imagine that there will be further debate on the matter during the Bill’s passage through Parliament. However, I look forward to the Minister telling us that RDAs are covered; and I would like to know how he anticipates local authorities having a consistency of approach when implementing the provisions.

The debate on having regard to and furthering is an echo of an earlier debate on clause 2, the purpose clause. I suspect that there is some hesitance to further nature conservation and biodiversity because of the possibility of conflict between economic and social aims. As we acknowledged earlier, Mr. Forth, good practice and good land management would help resolve many of those issues. It is an important clause. Even though interesting amendments have been tabled, it is vital that we applaud the Government for bringing forward such legislation.

Jim Knight (Labour, South Dorset)

I declare at the outset, as did other hon. Members, that I am a member of the Dorset wildlife trust. Indeed, I even went so far as to raise money for it by walking from one end of my constituency to the other. I took a couple of days; it was most enjoyable and a fantastic opportunity to appreciate the biodiversity of my constituency. I enjoyed it again at the weekend when I helped to organise a horse-riding event, when I followed a hare that was running along the road in front of the car, and when I witnessed a couple of skylarks on the downland above the Weymouth white horse. I enjoyed myself considerably when admiring the biodiversity in Dorset.

It will help if I sketch out exactly what clause 40 does. It places a duty on all public bodies and statutory agencies to have regard to conserving biodiversity in the normal exercise of their functions. The definition of conservation in that instance includes restoring and enhancing habitats and the populations of living species. I can tell the hon. Member for South-East Cambridgeshire—I am grateful for his supportive comments —that it is a duty. Its purpose is to clarify existing duties and to raise the profile of biodiversity. The generic nature of the duty allows complete flexibility in delivery, and it allows public bodies to implement it in the way that is most relevant to their functions and to the opportunities that are open to them—and local authorities are accountable for that to their electors. It is intended to encourage a culture shift, so that public bodies make biodiversity a natural and integral part of the decision-making process.

I am sure that the Committee will be pleased to hear that DEFRA will be supporting the implementation of the duty—for example, through the additional allocation of £850,000 per year to support regional and local biodiversity partnerships. That will assist partners such as local authorities better to integrate biodiversity into their policies and operations. The duty will apply to England and Wales, and I can tell the Committee, particularly my hon. Friend the Member for Sherwood, that it will apply to all public bodies—not only local authorities, but Government Departments and regional bodies, including regional development agencies.

The amendments, as we have heard, seek to strengthen the duty by requiring public bodies to aim to further the conservation of biodiversity. We are comfortable that the wording of the Bill goes far enough to encourage public bodies to integrate biodiversity into their functions. While the duty does not prejudge the outcomes for biodiversity—which, to some extent, the amendment seeks to do by using the word “further”—it should mean that decisions are more beneficial for the conservation of biodiversity than they might otherwise have been. I have had conversations with officers of English Nature, who would value the ability to go to local authorities or other public bodies—regional development agencies are a good example—to point out to them their statutory duty to have regard to the conservation of biodiversity.

We are, primarily, trying to tackle the instances in which biodiversity loses out because it is not taken into account. On that basis, this duty is sufficient. Local authorities have been much referred to by the hon. Member for South-East Cornwall and by my hon. Friends the Members for Bridgend and for Bury, North, and 67 per cent. of them do not include biodiversity questions on their planning application forms. The duty set out in the Bill would address that. The hon. Member for Banbury (Tony Baldry) waxed lyrical about the excellent performance of his local authority. I pay tribute to the many local authorities and councils throughout the country that work hard in the pursuit of biodiversity conservation. However, the fact that 67 per cent. do not include such questions suggests that we need to do a little more, as we have heard. I can tell my hon. Friend the Member for Bridgend that councils will have to worry about the newts; they will have to have due regard to them under the new duty.

Strengthening the “duty to further” would raise difficult questions for local authorities and other public bodies. The Committee is in agreement that it is desirable to further biodiversity. The question is whether stating that as a duty will cause difficulty. Let me give an example. A local authority could be faced with a decision between two projects, one that is good for biodiversity but bad in other ways, and another that is neutral for biodiversity, but furthers things economically and socially. I would not want to make that local authority subject to legal challenge for not opting for the plan that furthered biodiversity when it could have gone for the neutral one that did no damage to biodiversity but allowed it to further some of its other aims.

Colin Breed (Liberal Democrat, South East Cornwall)

As mentioned, the measure will bring England and Wales into line with Scotland. Is the Minister aware of any problem, along the lines that he just described, in Scotland, which has been subject to this duty for some time?

Jim Knight (Labour, South Dorset)

The issue of Scotland is one on which we celebrate devolution—the ability of each nation to decide for itself how to interpret things and which duties to apply. I do not want to comment unduly on the effect of that; I want to concentrate on what is right for England and Wales. To introduce an extra duty to further biodiversity has the potential to cause some difficulty, and to invite legal challenges on individual decisions of public bodies. In my constituency, the Ministry of Defence does an admirable job in furthering biodiversity on the ranges at Lulworth and around the camp at Bovington—for example, by taking extraordinary steps to protect sand lizards around the tank training tracks. There are excellent examples of Departments as well as local authorities furthering biodiversity, but there may be circumstances where the Ministry of Defence, for example, needs to take actions to further its own statutory aims. As long as those aims are neutral in relation to biodiversity, we should not be critical of them and make them subject to legal challenge because they did not further biodiversity.

David Chaytor (Labour, Bury North)

On neutrality, would the Minister accept that it is in the nature of a duty that merely requires a body to have regard to something that the body could have regard to it and then choose to ignore it completely?

Jim Knight (Labour, South Dorset)

The body could have regard to biodiversity and choose to take another action, but it would have to be able to demonstrate that it had regard to the purpose of conserving biodiversity. If it were challenged, it would then be able to demonstrate that it had properly considered the biodiversity implications of its actions. That is the important aspect of what we are trying to introduce here, which I think all Committee members would agree is a positive step forward—although some may argue that we should go a little further.

In short, the duty to “have regard” is in my view the most appropriate approach. I have listened carefully to hon. Members and I say in passing to my hon. Friend the Member for Sherwood that tomorrow I shall be launching a new woodland policy, to which I am sure he will pay close attention. I think that we have the most appropriate approach regarding duties on public bodies in relation to biodiversity, and on that basis I hope that the hon. Gentleman will withdraw his amendment.

Colin Breed (Liberal Democrat, South East Cornwall)

We have had nearly an hour of very good, honest and straightforward debate. At the end of the day, I feel that there is not a great deal of difference between the parties or many individuals.

When I considered the clause, I immediately felt the same way that the hon. Member for South-East Cambridgeshire felt about imposing another duty on local authorities. Local authorities have had enough duties imposed on them during the past few years and as a former councillor—as I suspect many hon. Members were—I recognise that many councils feel that they have become not much more than agents of central Government. I needed to be persuaded of the case to impose another duty on them.

I was persuaded because of two or three issues. It is rather ironic that those areas of the country that have for a long time protected the countryside through planning policies, protected biodiversity and taken the matter extremely seriously have become a magnet for people who wish to move. They have become places that people now want to go to and thus are subject to considerable pressure for more development.

The first reason that I felt that this duty was needed was that in future local authorities might value having an additional duty to give them the armoury and protection that they need to go into fights with developers over particular sites so that they can genuinely say, “I’m sorry, but we have a duty to conserve biodiversity rather than just have regard to it.” That would give them a stronger hand in dealing with development applications in sensitive places.

To a certain extent, it is a matter of value judgments, and I think that what the Minister is saying about having regard is all right, but what value do we attribute to the regard of biodiversity against what happens in a planning application, the management of an estate or whatever? Where is the value judgment? The value of biodiversity has moved from almost nowhere to way up the scale, but sometimes just having regard to it means that sites can deteriorate. They will not be maintained at their current level if planning applications are approved merely because the planning authority has had regard to biodiversity.

Then we come to those situations where local authorities, having had regard for biodiversity, properly refuse an application. In 99 cases out of 100, the applicant will immediately go to appeal. However, I suspect that if there were a duty to conserve biodiversity there would be little doubt that such applicants would not appeal and that if they did, the planning inspectors would have much more opportunity to give such value judgments the force that we all believe is right.

We have concentrated on local authorities but are talking about all public bodies, some of which have approached the situation much more proactively than others. I always smile a little when we talk about the Ministry of Defence. Having spoken on defence for a couple of years, I recognise that it does a fantastic public relations job of telling us how great it does on its ranges, while largely forgetting about the acres of land that it churns up with tanks and explosives on Dartmoor. The MOD does a great job on the margins, but in the middle, where it thunders around with huge tanks ripping up the soil, I am not quite so certain that it has regard for biodiversity.

There is a measure of agreement across the Committee that the issue is important. The clause is welcome, although even at this stage the Minister has not persuaded me that there are great difficulties. He could have given lots of examples of real conflict in Scotland, where similar proposals have been passed. My view is that many local authorities would welcome the protection that they would give in negotiations on developments in or close to sensitive sites, rather than opposing them as another duty. I would therefore like to press the amendment to a vote.

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 138, in clause 40, page 14, line 19, after ‘means’, insert ‘in relation to England,’.

Eric Forth (Conservative, Bromley and Chislehurst)

With this it will be convenient to discuss Government amendment No. 139.

Jim Knight (Labour, South Dorset)

I shall not detain the Committee very long. The amendment makes a minor technical revision to subsection (5) to reflect the difference in practical interpretation of the term “authority” in England and Wales. I apologise that we had not recognised the difference, but it has come to our notice that we need to define local authorities in Wales properly. I apologise in particular to my hon. Friend the Member for Bridgend and the hon. Member for Brecon and Radnorshire (Mr. Williams), who I am sure noticed that and would have tabled an amendment if we had not done so.

Clause 41 - Biodiversity lists and action (England)

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I beg to move amendment No. 4, in clause 41, page 14, line 33, at end insert

‘and such other bodies as he sees fit’.

Eric Forth (Conservative, Bromley and Chislehurst)

With this it will be convenient to discuss amendment No. 5, in clause 42, page 15, line 6, after ‘Wales’, insert

‘and such other bodies as the Assembly sees fit’.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I should point out that I have recorded in the Register of Members’ Interests ownership of and partnership in a farming business in Wales, as that may be reflected in my amendments.

When I first started farming, the Government paid me to drain, plough up and re-seed wetland. That was before the common agricultural policy had come into force, so we cannot even blame the Europeans. I am now paid to reverse the process and re-establish the wetlands, so in one generation I have seen a huge change in land use in this country.

I have not recorded in the register, although perhaps I should, the fact that I am a participant in a scheme run by the Welsh Assembly called Tir Gofal, which means the cared-for countryside or land. That scheme is equivalent to, but much better than, the countryside stewardship scheme in England. It is a very good whole-farm scheme, which takes in all land that is farmed and has an integrated and comprehensive approach to nature conservation.

The intention behind amendments Nos. 4 and 5 is to be helpful to the Minister, although he rejects our advances, however much we try. The amendments would give him the opportunity to consult other people in England and the Assembly the opportunity to consult other bodies in Wales, rather than just Natural England and the Countryside Council for Wales, because we believe that such consultation would benefit the drawing up of the list of species and habitats. The Minister will tell me that he will consult everyone and that the clause merely places a requirements on him to consult Natural England, but it is only fair that the amendment should be part of the legislation, because things change and organisations other than Natural England might come into force. It would therefore be appropriate for the Minister to consult such organisations.

Other factors might also be taken into consideration. Much of our wildlife, for instance, is not only important in this country; many migratory species spend only part of their time here, and it can be difficult to track where many bird species, several insect species and certainly marine wildlife spend some or most of their time. It is therefore important to consult nature conservation bodies not only in this country but in Europe and throughout the world if we are serious about ensuring that our approach to biodiversity is not only neutral, as the Minister says, but a way to promote it for ourselves and future generations.

Such things are not always obvious. A few weeks ago, I went walking with a group of schoolchildren in the hills around their school, and we came across a splendid, huge display of bluebells. I tried to get the children to show some enthusiasm, but they said, “Bluebells are bluebells; we see them all the time.” Britain has one third of all European bluebells, so although the species is common, this country is an important habitat for it, because we have so many areas where it can flourish and thrive.

I shall not pursue the matter, but my point applies not only to European and world bodies involved with nature conservation; on a lower level, many people and bodies with relevant expertise could be consulted.

Jim Knight (Labour, South Dorset)

Clause 41 places a duty on the Secretary of State to publish lists of living organisms and types of habitat in England that she believes to be of principal importance for the purpose of conserving biodiversity, and to consult Natural England before doing so. The clause reflects the current position, which was introduced by section 74 of the Countryside and Rights of Way Act 2000.

The clause requires the Secretary of State to take reasonably practical steps to further—how nice to use that word—the conservation of living organisms and types of habitat, to promote the taking of other such steps, to keep under review the published list, and to publish any revisions of the list.

Clause 42 places similar duties on the National Assembly for Wales, requiring it to consult the Countryside Council for Wales in carrying out the duties.

Amendments Nos. 4 and 5 propose that the Secretary of State and the National Assembly for Wales should consult other bodies as they see fit. As they are likely to want to consult other interested bodies—I am about to say what the hon. Member for Brecon and Radnorshire thought I might—the amendments are not necessary and do not add anything. In the normal course of things, we should and do consult; whom we consult should depend on the issue on which we are consulting. If anything, the amendment would weaken the clause by reducing the important roles to be played by Natural England and the Countryside Council for Wales, although I do not want to overplay that point.

In essence, the hon. Gentleman and I disagree, as ever, on whether something should be explicit in the Bill or implicit. I argue, as ever, that implicit is sufficient. On that note, I hope that he will withdraw his amendments.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I have heard the Minister’s comments and beg to ask leave to withdraw the amendment.

Madeleine Moon (Labour, Bridgend)

I beg to move amendment No. 128, in clause 41, page 14, line 39, leave out ‘promote’ and insert ‘ensure’.

Eric Forth (Conservative, Bromley and Chislehurst)

With this it will be convenient to discuss the following amendments: No. 61, in clause 41, page 14, line 39, at end insert—

‘having regard to the financial costs which such steps would incur’.

No. 129, in clause 42, page 15, line 11, leave out ‘promote’ and insert ‘ensure’.

Madeleine Moon (Labour, Bridgend)

I listened to the Minister’s explanations on clause 40 and was particularly pleased to hear his assurance that a responsibility will be placed on local authorities to include biodiversity issues in planning application forms.

In many respects, the issues covered by clauses 41 and 42 flow from clause 40. We are talking about the Secretary of State and the National Assembly for Wales having responsibilities to publish lists of species of principal importance, not about their having a general regard for biodiversity. Species of principal importance may be rare or at risk of loss and may be of European as well as UK importance.

How do we ensure that we give the list a statutory power for delivery among those authorities that are required under subsection (3)(b) to

“promote the taking by others of such steps.”?

A questionnaire was sent out by the Association of Local Government Ecologists, and the drive for local authorities to take action on biodiversity was right there in their top three priorities: legislation and statutory obligations, Government policy guidance and—surprise, surprise—funding incentives.

What we have here is a list that is backed by policy guidance and statutory obligations. It will have greater authority when local authorities and regional development agencies look at it. I cannot speak about the regional development agencies in England, but the Welsh Development Agency is not noted for its commitment to, interest in or role in the conservation of biodiversity or species of principal importance.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I have listened to the hon. Lady, but one Member is appointed to the board of the WDA to have specific responsibility for wildlife and diversity issues.

Madeleine Moon (Labour, Bridgend)

I am aware of that. However, as always, it is a voice and what matters is how often that voice is listened to. The hon. Gentleman will agree that that voice is often crying in the wilderness.

We are looking for a chance to ensure that the list is proactive and not passive. We have such lists in Wales. The issue is the status of the list. The hon. Member for the traffic jam of South-East Cambridgeshire expressed concern at putting definitive responsibility on local authorities. Here, we must push the responsibility because we are discussing a list of species of principal importance. I want to ensure that the necessary steps are taken, not merely promoted. The hon. Member for Brecon and Radnorshire (Mr. Williams) referred to a voice in the Welsh Development Agency. I am sure that that voice promotes the taking of such steps by the WDA and I am sure that that happens on equivalent bodies in England. If species of principal importance are to be protected, the responsibility must be to ensure that the necessary steps are taken.

I welcome the Minister’s announcement of an additional £850,000 for local biodiversity partnerships. I hope that that will enable us to add to the species list, so that we ensure that it increases and does not decrease.

I am sure that the planning inspectors would note the responsibility for species on the list if they were required to ensure their protection.

James Paice (Conservative, South East Cambridgeshire)

I have listened with interest to the hon. Lady and do not dissent from her desires, but I am concerned about her proposal that the Secretary of State should have the power to ensure—that effectively means enforce—that local authorities and other public bodies deal with the list. The drafting of my amendment may not be the best, but it tries to flag up my concern that the Secretary of State may, even with the word “promote”, put obligations, even if they are only moral obligations, on public bodies, and particularly local authorities, regardless of the financial cost. There may be arm twisting in the form of promotion. That is a difficult issue. Most of us would say, when we are talking about endangered species and the biodiversity action plan species, that, clearly, we should not have to think about what the cost is, because the long-term costs to the country, as the hon. Members for Bridgend and for Bury, North said earlier, are terribly important. I agree with that.

I am also conscious, as we all are, of the reference by the hon. Member for South-East Cornwall to the ever-increasing obligations on local authorities to do things without the cash flow to do them. It is one reason that council tax has been rising so much faster than inflation during the past few years. Obviously, there are many other reasons, but more and more duties without the Government funding them is one.

The purpose of amendment No. 61 is to insert the provision that when the Secretary of State promotes the taking by others of such steps, it should be done—using the Government’s own phrase—“having regard to” the financial costs that such steps will incur. In other words, the amendment is making the Secretary of State stop and think, not necessarily that the steps should not be taken, but that they could be expensive. If the Secretary of State is going to say to local authorities “You need to take these steps,” or by using “promotion”, “We want you to,” the Government should provide the wherewithal to do so. I am seeking not to stop the action, but to ensure that the council tax payer is not yet again forced by local authorities to pay for another responsibility that the Government, in imposing that obligation on local authorities, have not directly supported.

It is a straightforward point. I entirely agree with the principle of the proposal in the legislation. The Secretary of State should promote the taking by others of such steps, but we must flag up the issue of cost, not to stop those steps being taken, but to give some thought to who will pay and how. As the hon. Member for Bridgend said in relation to the Association of Local Government Ecologists, the funding question is always there and one cannot ignore it. It needs to be incorporated in that responsibility, and that is why I have tabled amendment No. 61.

Jim Knight (Labour, South Dorset)

I have already sketched out what clause 41 seeks to do. Amendments Nos. 128 and 129 change the duty for the Secretary of the State and the National Assembly for Wales from promoting the taking of steps by others to further the conservation of biodiversity to ensuring it. The duty of the Secretary of State and the National Assembly for Wales to promote the taking of such steps already exists in section 74 of the Countryside and Rights of Way Act 2000. So, we do not seek to change anything, and the judgment about whether we have got the provision right is about whether what is in operation is working.

The duty is being carried out effectively, and there would be no additional value in changing the wording from “promote” to “ensure”. I see my hon. Friend the Member for Bridgend shaking her head. There may be some difficulty about how we would enforce “ensure”, but I hope that on the basis of what I have said and of our discussions about clause 40, she will withdraw her amendment.

Amendment No. 61 would require the Secretary of State to have regard to the financial steps that she promotes others to take to further the conservation of the living organisms and types of habitats included in any list published under this provision. I should expect any decision to be based on the three pillars of sustainable development and therefore to incorporate social, environmental and economic considerations. In addition, this part of the clause refers to those steps that the Secretary of State would “promote” others to take, and therefore there would be no obligation on others to take those steps if they believed that they would be unduly costly. Value for money and financial implications are already comprehensively integrated, and I do not, therefore, believe that the amendment is necessary or desirable.

The clause goes no further than section 74(2) of the Countryside and Rights of Way Act and already includes the concept of practicability in the steps that should be taken to further the conservation of biodiversity. Practicability would clearly include financial considerations. I hope that I have given the hon. Member for South-East Cambridgeshire sufficient comfort to persuade him not to press his amendment.

Madeleine Moon (Labour, Bridgend)

I am sorry to hear the Minister’s reply. It is because the list has little impact in Wales that I tabled the amendments. It is given scant regard because its status and authority are in doubt. The stance that he has taken will ensure that that happens in England, too. I shall take heart from his words about clause 40 and the idea that recognition of the Government’s determination to move forward on issues of biodiversity will raise the status of the lists. I want to see an improvement on “regard” and I want local authorities in Wales and in England to take cognisance of the lists. If I do not see that happen, I will make the Minister’s life a misery. With that in mind, and on the understanding that he can look forward to my making his life a misery, I beg to ask leave to withdraw the amendment.

Clause 42 - Biodiversity lists and action (Wales)

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I beg to move amendment No. 77, in clause 42, page 15, line 2, leave out ‘must’ and insert ‘may’.

Eric Forth (Conservative, Bromley and Chislehurst)

With this it will be convenient to discuss the following amendments: No. 78, in clause 42, page 15, line 5, leave out ‘must’ and insert ‘may’.

No. 79, in clause 42, page 15, line 7, leave out ‘must’ and insert ‘may’.

No. 80, in clause 42, page 15, line 12, leave out ‘must’ and insert ‘may’.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

On Second Reading, I suggested that we should examine the Bill to see whether it gave due recognition to the fact that the Assembly is a national Government for Wales and should be given the same recognition as other devolved Governments in Great Britain. We consider such things carefully, because those of us who are committed to devolution, and even to making progress with the devolution settlement, would like the relationship between Westminster and the devolved Governments to act as a positive influence for all that we believe in.

The Government of Wales Act 1998 in particular put in statute the idea that the National Assembly for Wales should be committed to, and give due recognition to, sustainability. It is probably one of very few national Governments in the world—probably two or three others can be found—with that statutory duty. Therefore, it seems particularly inappropriate that the word “must” should be used in the clause. It seems beyond belief that the National Assembly for Wales would not want to play its part in promoting, conserving and enhancing biodiversity.

Perhaps the amendment is not absolutely right and the word “may” is not quite the right choice. The word “should” might be preferable. Perhaps the clause should use a form of words such as “The Secretary of State should encourage”. However, I consider the word “must” to be particularly inappropriate. I should like the Minister’s assurance that he will consult the National Assembly for Wales on this aspect of the Bill, and perhaps one or two others, to ensure that the wording is conducive to the formation of that constructive partnership that will serve not only the devolved nations but the whole of the United Kingdom.

Jim Knight (Labour, South Dorset)

In debating earlier clauses, I have sketched out what clause 42 is designed to do. Amendments Nos. 77 to 80 would significantly weaken the duties in Wales by changing “must” to “may” in four instances, although I accept that the hon. Gentleman said he is not sure it would be right to use “may”. The amendments would effectively change the duty to a power, and we want to continue with the existing position as introduced in the Countryside and Rights of Way Act 2000.

The Welsh Assembly Government already have the duty in question under the 2000 Act, and any change would be detrimental to biodiversity conservation. The listing process ensures that species and habitats of particular importance are highlighted so that their protection will be prioritised. I am sure that it is not the hon. Gentleman’s intention to weaken the activity of the Welsh Assembly Government in that regard. The presence of these lists will be even more important in future, because all public bodies will have a duty to have regard to the conservation of biodiversity. The list will be an important source of information and help them to prioritise.

I assure the hon. Gentleman that we have consulted our devolved colleagues in the Welsh Assembly Government who are happy that they must consult the Countryside Council for Wales on the list and take such steps as appear to the Assembly to be reasonably practicable for the conservation of living organisms and habitat types on the list. On the basis that we have consulted and will continue to consult colleagues in Wales on all aspects of the Bill, I trust that the hon. Gentleman will withdraw his amendment.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

On that basis, I beg to ask leave to withdraw the amendment.

Clause 43 - Possession of pesticides harmful to wildlife

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment

No. 144, in clause 43, page 15, line 21, at end insert

‘with the intention of committing any offence under Part 1 of the Wildlife and Countryside Act 1981 (c. 69), the Conservation of Seals Act 1970 (c. 30), the Deer Act 1991 (c. 54) or the Protection of Badgers Act 1992 (c. 51)’.

Eric Forth (Conservative, Bromley and Chislehurst)

With this it will be convenient to discuss the following amendments: No. 63, in clause 43, page 15, line 26, after ‘was’, insert

‘or had been in the past’.

No. 64, in clause 43, page 16, line 2, at end insert—

‘(7A)An order made under subsection (1) shall come into force on such date as may be prescribed by the Secretary of State being not less than six months from the date on which it is made.’.

James Paice (Conservative, South East Cambridgeshire)

I make it absolutely clear that the Opposition condemn anybody who uses poison to kill birds of any species. I wholly support the Government’s objective in tabling the next few clauses. As an aside—this will come up again later—I am slightly concerned that the Government did not consult on the provisions before including them to ensure that they got them right. There was some discussion, but it was not a consultation. The reason why I am concerned, as I am about clause 46 and the protection of nests, is that I am not sure that the proposals will address the problem that I readily accept exists.

It is already an offence to set poison for a bird and has been for 24 years. It is also already an offence to possess a large number of pesticides that have been banned in preceding years. In particular, carbofuran has been most commonly used for poisoning birds of prey. Although the problem is not restricted to birds of prey, their protection is the principal objective of the clause. In 2003, which is the latest year for which I could obtain figures, carbofuran was used in 35 of the 58 incidents across the UK. It is already an offence to possess it, so the clause is not necessary to deal with the pesticide.

If we narrow the focus to England and Wales, which is what the Bill applies to, we see that carbofuran was used in three of the eight cases in England and two of the seven in Wales. On top of that, two other pesticides—mevinphos and alphachloralose—have also been withdrawn from the market, so it is also an offence to possess them. They account for another five of the 15 cases in England and Wales. If we take out the pesticides that have already been banned, we can narrow down the problem considerably.

The Royal Society for the Protection of Birds says in its report on bird crime in 2003, from which I have obtained all these statistics:

“We are concerned that withdrawing pesticides that are most frequently abused one at a time has not solved the problem. Instead alternative products have been found.”

It means by that that it supports this proposal which would, effectively, ban any pesticide that an individual has no good reason for possessing. However, I believe that the phrase

“Instead, alternative products have been found”

demonstrates the big loophole in the legislation, in that those who want to poison raptors or other birds of prey will continue to find means of doing so. A large number of toxic pesticides will still be available, and people will have no difficulty in convincing courts that they are legally entitled to have them. For example, phostoxin is used for rabbits; warfarin and other anticoagulants and all sorts of other chemicals are used against rats and mice; and strychnine is used against moles. That is without even considering traditional agricultural pesticides such as insecticides. One that is commonly referred to is temic. I am not aware that there has ever been a case of the poisoning of a rat or a bird of prey with temic, but I readily accept that that is possible, because it is a noxious pesticide. However, temic is legal, and is approved for use on potatoes. Therein, again, lies for me the problem with this approach. Anybody who has some temic, even if his intention is malign, has only to say that he got it for his mate because he grows potatoes in his allotment and that he therefore has a justification for possessing it. It is not that I do not support the objective, but I have a fundamental problem believing that the legislation will make a jot of difference. It is legislating on the “something must be done” principle rather than because it will make any difference.

There is already a mass of legislation that deals with this sort of thing. The RSPB document refers to the fact that people have been prosecuted for the illegal storage and use of pesticides—beyond the issue of poisoning of birds, there is the matter of illegal storage. People are already being prosecuted for other offences under the Food and Environmental Protection Act 1985. Having spent three years as shadow spokesman on police and crime, and having sat in this and other Committee Rooms dealing with criminal legislation, I am averse to the idea that we need more laws and to ban this and that. It is a bit like antisocial behaviour: we keep making more individual bits of behaviour illegal, without addressing the fundamental issue.

I do not want to digress, and I know that you will not allow me to do so, Mr. Forth, but that is the problem that I want to turn to now, and I hope that you will let me make a couple of points on the issue that clause 43 seeks to address. It will be mirrored when we come to clause 46 and the matter of nests.

I am the first to accept that there is a problem with the public image of gamekeepers, either because of Lady Chatterley’s Mellors—perhaps that is an unfortunate word for some of us who have been in this House for a few years—

Robert Goodwill (Conservative, Scarborough and Whitby)

Will that go in Hansard?

James Paice (Conservative, South East Cambridgeshire)

“Don’t print that,” as they say.

More to the point is the image of the old-fashioned gamekeeper’s gibbet, with pests and vermin hanging on barbed wire and things like that. Of course, there is also the image that grouse moors are the preserve of the very wealthy and rich. Yes, they are. Few people can afford to go shooting grouse, and I am not one of them. Nevertheless, as my hon. Friend the Member for Scarborough and Whitby (Mr. Goodwill) will vouchsafe from his constituency, it is terribly important economically in such areas. There is ample evidence that the prosperity of some rural communities goes hand in hand with the prosperity of the shooting community, particularly where grouse moors are concerned.

Peter Atkinson (Conservative, Hexham)

My constituency contains the best grouse moors in England. In the remote parts of the north Pennines, the Allen valleys, they contribute about £3 million a year to the local economy, and that is a huge amount and is of huge importance.

Eric Forth (Conservative, Bromley and Chislehurst)

Order. I am hoping that the hon. Member for South-East Cambridgeshire will persuade me fairly quickly of the connection between grouse moors and clause 43. I urge him to do that quickly or to move on.

James Paice (Conservative, South East Cambridgeshire)

I am happy to do so, and I appreciate that there are not too many grouse moors in your constituency, Mr. Forth. Nevertheless there is a widespread perception—and evidence from the RSPB’s papers—that many incidences of poisoning of birds of prey are taking place on grouse moors. That is the clear connection.

What I have described may be the public image, but the reality—apart from the economic issues, which I am grateful to my hon. Friend for endorsing—is that the issue of wildlife relates more strongly to this section of the Bill. There is ample evidence that keepered moors are more beneficial for the overall panoply of wildlife than unkeepered moors.

Moors that are managed for grouse typically have a wader population—golden plovers, lapwings and curlews—of up to five times the population of unkeepered moors. Part of that is the control of ground vermin, particularly foxes and crows, which persecute such birds, particularly ground-nesting birds. If we look at the north Pennines area of special protection, we find that curlews are 18 times more prevalent than in the Berwyn mountains in Wales, which are run as a reserve. The merlin, which is the subject of an amendment in this group, is twice as common on managed moors as unmanaged moorland.

All those other birds—of course, the merlin is a bird of prey—benefit from the management of a grouse moor. Nowhere was that emphasised more clearly than in the Langholm study carried out in the 1990s on grouse moors in Dumfriesshire. It clearly showed the effect of the prevalence of the hen harrier, which is one of the most sensitive birds and the victim of a number of such offences in the past. When the hen harrier population rose alongside the grouse population until the tipping point and then got so high that it began to damage the grouse population, the viability of the moor diminished and the owners had to withdraw the gamekeepers as they could no longer justify them. Immediately, of course, the other predators came back on the scene and the population of hen harriers crashed. It is now down to two or three pairs on that moor; there were several times that number.

I use that point to illustrate that such factors all work together. The real solution, and I apologise if I have been tempting providence, Mr. Forth, is that we have to persuade the people who carrying out such poisonings—I accept that it is going on—that there is a better way of resolving the fundamental issue, which is seen as a conflict, although I do not believe that it is. I would like to see much more of a rapprochement between those involved in managing such areas.

I happen to think that we need to examine the concept of relocation when numbers of raptors in certain areas get above a level that is sustainable alongside all the sporting activities. I shall now turn, I am sure with your gratitude, Mr. Forth, to the individual amendments in the group, but I just wanted to set the wider context of my thoughts and concerns.

Amendment No. 144 would require the proof of intent. I am concerned, as hon. Members often are, when we seek in the House of Commons to reverse the burden of proof. I know that we have said in other legislation, “You are guilty unless you can prove your innocence”, or in other words we have told people that unless they can prove that they have a good reason for having something we will assume that they are guilty. I believe that that is a fundamental breach of the traditional way that we deal with criminal law. As I say, this is not the first time that it has been mooted—it has happened before—but each time it is another step towards a wholly different approach to criminal law, which we have traditionally rejected in this country. However, that is clearly what clause 43 says when it specifies:

“A person is guilty of an offence if he has in his possession a pesticide”—

and so on.

Later on, some defences are laid down, but the onus will be clearly on the individual to prove that he had just cause to have this particular pesticide or else it will be deemed that he had it for a malign purpose or criminal activity. That is wrong, which is why there should be an attempt to prove intent in the clause. I have already explained why the clause is unlikely to produce the results that we want: a reduction in bird poisoning incidents. I am not convinced that the clause will have that result and with respect to civil liberties and the right way to address criminal law, the obligation to show intent should be included.

Amendment No. 63 would insert into subsection (3), where a person is able to prove

“that his possession of the pesticide was for the purposes of doing anything in accordance with”,

and so on, a need to reflect that it is easy to accumulate old pesticides and a few cans or tubes of something in the shed. I suspect that any Committee member who is a gardener is conscious of this. The amendment would put into the clause a defence that something had been used in the past for one of the purposes of doing anything in accordance with the legislation. It is a perfectly reasonable position to adopt simply to say, “I’ve got some left over. I’ve had it a few years because I used to use it for X, Y or Z.”

Obviously, if it is illegal to possess that pesticide under other legislation, such as the Food and Environment Protection Act 1985 or other regulations, it is illegal to possess it: it is an offence. We know that, but I am concerned about the many other pesticides that are legal to possess in cases where, being reasonable, the person may have had a reason for having them in the past rather than the present.

Amendment No. 64 would introduce a six-month delay in the commencement in order to provide time for the knowledge and information to be satisfactorily put out and publicised, in what would be very remote areas, among the communities where such problems arise, to ensure that people know that the law has now changed, to whatever extent it ends up being changed. That will also give them time to dispose of whatever they have that they may wish to dispose of. Of course, we do not want people simply to put it in a dustbin or pour it in a ditch because of its nature. They will have to comply with environmental legislation when disposing of unwanted pesticides. It is perfectly reasonable—I understand from conversations that it would be acceptable to some of the outside bodies involved—to build in a delay before the offence comes into force in order to give people time to deal with whatever they may have in their possession.

The three amendments are designed simply to improve the quality of the legislation. Some of the other groups that I shall refer to in relation to this and other matters are also there purely to try to improve the quality of the legislation, as we are all required to do. That is the purpose of Committee scrutiny. However, at the same time, I have serious reservations about whether clauses 43 and 44 will achieve the results that the RSPB, the Minister, the vast majority of the sporting community and I want.

None of us wants people to poison birds of prey, particularly those that are rare. It is even dafter to poison birds of prey such as the red kite, which is the subject of a massive release and breeding programme. We have recently successfully reintroduced it into this country and it is a delight to see. It is not a problem. It feeds off carrion. Poisoning it is clearly daft, but sadly some people see fit to do so. As I said when introducing my remarks, I wholly condemn them and they need to be prosecuted, but I am not convinced that this provision will achieve that. If we are going to include it, it needs some amendments.

Robert Goodwill (Conservative, Scarborough and Whitby)

First, I will establish my Sheffield credentials. As a candidate in the 1998 South Yorkshire European by-election, I had much experience of the rural parts of South Yorkshire in particular—we could not find too many Conservative voters in the urban parts. Happily, 12 months later, I was elected to represent the entire region, including Sheffield, in the European Parliament. I am pleased that the Minister has followed the precedent of Arthur Scargill, who relocated his headquarters to Sheffield, but that is another story.

I endorse the comments made by my hon. Friend the Member for South-East Cambridgeshire about his amendments. I am concerned that we may be unwittingly criminalising people who are acting responsibly. There is a fragile balance—certainly on the North Yorkshire moors—and were it not for the activities of moorland gamekeepers, that balance would quickly mean that the moors would revert to bracken and scrubland. All the degradation of the environment that we have heard about from my hon. Friend would take place. It is only through burning and the control of predators that we can maintain the red grouse population on the moors. That bird cannot be reared artificially. It is only by maintaining the environment so that that bird can thrive that there is an income for the North Yorkshire moors and other moorland areas that means that those rural communities can be sustainable.

The vast majority of gamekeepers behave responsibly and use products legally. The reasonable use of these pesticides should be allowed to continue. In North Yorkshire in particular, we have had some very mild winters. We have a large rat population and the use of poison to control those rats, which can eat eggs, is important. Of course, the number of ways of controlling foxes has been somewhat diminished in recent months.

Pesticide legislation is complex and the supply is already well controlled. As a farmer, I have a pesticide store. I am licensed in the use of pesticides and, like the vast majority of farmers and gamekeepers, we adhere to the legislation. It is already an offence under section 5 of the Wildlife and Countryside Act 1981 to set poison with the intention of killing a wild bird. Many of the problems, particularly when they occur in relation to red kites, are with raptors eating carrion that has been poisoned. The Bill would not have any effect on carrion that had been legally poisoned and then became the food of raptors.

As has been said, many farmers and gamekeepers store unused stocks of pesticides. The advice from the Department for Environment, Food and Rural Affairs is to use up stocks of pesticides for the use that they are intended and not to dispose of those chemicals. Therefore, it is likely that there will be a number of chemicals in stores throughout the country.

That can lead to problems because of product withdrawal. Products are often withdrawn not for reasons of safety but for economic reasons—the manager deciding that it is no longer economically viable to produce the products. Even more complex for the person on the ground is the problem of generic products. We may well find that a number of products available contain the same active ingredients. When one of those products is withdrawn, it is difficult for the person to realise that the one in his store is the one that is withdrawn. The fact that the product number on the packaging is obsolete means that he has a product that cannot be used. The six-month moratorium to allow people to realise which products are available and which are not is a good idea, particularly as many such products have similarly sounding names.

I endorse the comments that my hon. Friend made about the amendments. It would make the clause much more practicable and workable. The vast majority of people in the countryside want to achieve the same aims as do the Government. Using the amendments would help people to see a reasonable side to the Government by making the proposals workable on the ground.

Angela Smith (Labour, Sheffield, Hillsborough)

I start by promising hon. Members that I will not make any references to Sheffield except warmly to welcome the glowing testimony to the city that has been given and to object to the comments made by the hon. Member for Sherwood, who claimed Robin Hood for Nottinghamshire. I state once again that Robin Hood was a Yorkshireman. He was born in the village of Loxley in my constituency. The hon. Member for South-East Cambridgeshire was absolutely right about Cambridge. I lived there for four years—in Romsey, Newnham and Cherry Hinton. It does indeed take 15 minutes to go from one street to another in such a beautiful city.

I support clause 43. It closes a loophole in the law. At this point, I should declare my membership of the Royal Society for the Protection of Birds, the Woodland Trust, the National Trust and the Ramblers Association. I support the clause because, clearly, the use of pesticides to poison wildlife is a danger not only to birds of prey but to people and, particularly, to children, who are much less aware than adults are of the dangers represented by poisoned baits. The pesticides also pose a danger to working dogs and pets. So the problem is relevant to us all, not only those who are interested in wildlife.

The pesticides can be absorbed through the skin.

Eric Forth (Conservative, Bromley and Chislehurst)

Order. I remind the hon. Lady that the debate is specifically about the amendments. She is more than welcome to express her support for the clause when we come to the debate on clause 43 stand part, but, at this stage, I advise her to move on to talk about the amendments and to bear in mind that there is a possibility of a subsequent debate on clause stand part.

Angela Smith (Labour, Sheffield, Hillsborough)

I apologise, Mr. Forth. I was intending to move on to the amendment.

The pesticides are a danger and can be absorbed through the skin. The amendment would, indeed, weaken the clause in that it would negate the prosecution of many of the people who use the poisons. Although such prosecution would not solve the problem entirely, it would be a significant step in the right direction. It would not eradicate the problem of poisoning, but it would reduce it.

The hon. Member for South-East Cambridgeshire referred to the fact that individual bits of behaviour are increasingly being made illegal by the Government. I find these individual bits of behaviour abhorrent. The holding of poisons not needed for a regulated purpose is unacceptable behaviour that is highly dangerous and should be banned. The fact that some people have held such pesticides in the past and may have them in their garden sheds strengthens the need for the clause and reduces the need for the amendments. If people have them in their garden sheds, we must deal with that because garden sheds can be broken into. The poisons can be accessed in that manner and can be used for purposes that the clause is trying to prevent.

One hundred and six red kites were found illegally poisoned between 1989 and 2004. As far as the RSPB is concerned, that is only the tip of the iceberg and the true number is much higher. I hope that hon. Members will refuse to support the amendment, because those with a legitimate need to own such pesticides have a defence under subsection (3). We must move on the issues, and restrict the number of pesticides and poisons that can be used for such destructive purposes.

Madeleine Moon (Labour, Bridgend)

I rise briefly to speak to the amendments, and declare my interest in that I, too, am a member of the RSPB, and the Wildfowl and Wetlands Trust, as well as my local wildfowl trust. I was concerned to hear the vision expressed by the hon. Member for South-East Cambridgeshire of inspectors trawling through the garden sheds of Great Britain looking for unwanted pesticides.

I hope that the Minister will tackle the issue of publicity in his response, and ensure that people are fully aware of the implications for the holding of pesticides that the amendment would have. We must not wrongfully prosecute people. I accept that that is a desirable, and I hope that the Government will take its responsibility to do so seriously. Members of the Committee will be aware that a number of organisations are working on the Bill, and like us, they are trawling through it line by line. I hope that the British Association for Shooting and Conservation, the Country Land and Business Association, the Countryside Alliance, the Game Conservancy Trust, the Moorland Association, the National Farmers Union and the National Gamekeepers Association will also ensure that all their members are aware that the Bill makes it illegal to hold certain pesticides without good reason. I am sorry if we are putting a burden on local government again, but it is putting provisions in place to help with the legal disposal of the pesticides. Sadly, I am sure that we are all guilty of hoarding all sorts of products in our garages and garden sheds that, for the sake of our families and the wider community, it would be better if we did not.

Peter Atkinson (Conservative, Hexham)

Apologies for my late appearance in the debate, Mr. Forth, but as the Countryside Alliance was mentioned, and as I am listed as a consultant to that organisation in the Register of Members’ Interests, I thought that I would respond to the hon. Lady. The Countryside Alliance and the other organisations that were mentioned are utterly opposed to the poisoning of birds in any way. Any respectable gamekeeper knows perfectly well what the law is. We have had an interesting debate today about grouse moors, and the finger of suspicion always seems to point to gamekeepers who work on grouse moors. However, if one looks at the RSPB figures for confirmed wildlife poisoning incidents during 2003, there is not one involving a hen harrier. The majority of birds that were the victims of poisoning were, sadly, red kites and buzzards. No gamekeeper worries about red kites or buzzards to any extent because those birds eat carrion and do not predate on living grouse.

Madeleine Moon (Labour, Bridgend)

I was not suggesting that gamekeepers were responsible. What I was saying was that such organisations, along with those that have lobbied us, have a responsibility to the Government to ensure that people are fully aware of the implications of the legislation, so that people are not found with pesticides that they should not have once the legislation is enacted. I was not attempting to indicate in any way that there was a hidden agenda or that gamekeepers were party to mass poisoning of wildlife.

Peter Atkinson (Conservative, Hexham)

I am sorry, but I did not mean to imply that. I had moved on and was saying that a lot of the general publicity about the poisoning of birds seems to cast suspicion on moorland gamekeepers. I was trying to refute that, as the evidence does not support it.

The job of moorland gamekeeper is a high-profile one—it is visible, as there are always visitors and walkers on the moors—and those who do it operate in a fairly public arena. The majority of birds that fall victim to poisoning are attracted by bait that is put out to catch a hen harrier. Sadly, there have been two recent cases in my constituency in the roughly same area, one of which involved a red kite. Those who engage in such activities do so for nefarious reasons. They are irresponsible people, not responsible gamekeepers.

I support the amendment that my hon. Friend the Member for South-East Cambridgeshire has tabled. We should change the burden of proof with great reluctance and only after great consideration. Curiously, the burden of proof has been reversed in much wildlife legislation in the past. There are circumstances in which we should reverse the burden of proof, but it should be manifestly obvious that a benefit would be derived from doing so. In common with my hon. Friends, I do not think that the clause will achieve such a benefit, as it is confused in its intent.

The clause confuses people who keep bits of redundant poison in garden sheds with people who deliberately poison birds of prey. Gardeners have all sorts of things in their sheds, as my hon. Friend the Member for South-East Cambridgeshire said, some of which the Bill will outlaw. Some of us do not necessarily know what ingredients the products that we own contain, but we should perhaps look carefully on some rusting tins to find out. That is not the problem, however. People do not burgle garden sheds to get poison in order to poison birds of prey. Individuals who, for various reasons, poison wild birds are perfectly capable of obtaining illegal poisons.

The vast majority of poisons on the list are already banned. Carbofuran and alphachloralose are the main examples, and they have been banned for some time. It is easy for someone who is prepared to poison birds of prey to keep a stock hidden where no one can find it. The legislation will not stop such appalling individuals. If we are to reverse the balance of proof, will we be certain of catching the bird poisoners with the clause? I doubt it.

Jim Knight (Labour, South Dorset)

This has been a useful debate. I accept what the hon. Member for South-East Cambridgeshire said. He takes a close interest in such issues, and it is important to state that we share the same motivation, as do all members of the Committee.

The clause seeks to create a new offence of being in possession of a pesticide containing a prescribed substance that is harmful to wildlife. There is a genuine need to take such a step, because although it is already an offence under section 5(1) of the Wildlife and Countryside Act 1981 to use or set poisons to kill or injure wild birds, securing successful prosecutions by linking known poisoning cases to individuals has proved difficult. Meanwhile, wild birds, particularly raptors, continue to be illegally poisoned at a rate of 30 to 50 a year.

I shall give an example of the problem that we seek to resolve. My example is of a gamekeeper, although I do not seek to pass comment on gamekeepers as a whole, the vast majority of whom are highly responsible. A gamekeeper may lay poisoned bait with pesticide containing a prescribed ingredient in woodland near his pheasant pen. It may never be found, but it may be eaten by a buzzard. The buzzard is collected and found to have been killed by pesticide ingredient X. A search of the gamekeeper’s premises reveals a can of that pesticide, which he can provide no reason for having. A legitimate reason would perhaps be for the control of insects on fruit, but there are no fruit trees in the vicinity even though it is an approved pesticide and it is certainly not unlawful for him to possess it.

Although there is a link between the gamekeeper and the dead buzzard, and the gamekeeper has a motive for killing the buzzard to protect the valuable pheasants, the evidence remains circumstantial. The gamekeeper can argue that anyone could have bought the pesticide that caused the death of the buzzard. He does not have to provide a plausible reason why someone else might have done it or suggest another individual. With the new offence in clause 43, the gamekeeper will still be in the same position with regard to the offence of poisoning the buzzard, but the new offence of possessing a pesticide containing a listed ingredient without having a legitimate use for it—it is important to stress that—will be easier to prove. It will also be possible for the court to seize the pesticide concerned, thus preventing further abuse.

Peter Atkinson (Conservative, Hexham)

The problem is, as the Minister says, that there will always be products that anyone can legally possess that could be used to poison wildlife. If one product is prescribed under the clause, the person could get rid of it, but use something else such as slug pellets for which he could claim to have a perfectly legitimate use. He could simply replace one poison with another.

Jim Knight (Labour, South Dorset)

I accept that to some extent we will be playing catch-up and the situation that the hon. Gentleman describes may occur. However it is incumbent on us to do what we can to frustrate this activity, which we all agree is reprehensible. An alternative would be to ban all pesticides unless the person has a legitimate use for them, but although clear, that would be disproportionate. We have to target things a little more carefully and ensure that everything we do is backed by proper evidence.

Amendment No. 144 introduces an additional element to the offence of possessing a pesticide containing a prescribed ingredient and requires that the person concerned must have intended to commit an offence under one of the listed wildlife protection Acts. It is important that there should be no doubt that possession of listed pesticides without legitimate use is an absolute offence. The offence must therefore remain one of strict liability, regardless of intent, if it is to work. This will make it easier for the general public, farmers, gamekeepers and others who are likely to be in possession of such substances to understand the law, and for the law to be enforced. It is also important that all species of wild animals and wild birds are protected from pesticide abuse. It is therefore inappropriate to limit the application of this offence to particular species.

Amendment No. 63 introduces a retrospective defence to the offence of being in possession of a prescribed pesticide without having a legitimate use for it. Clause 43 is aimed at protecting vulnerable wild animals and birds from pesticide abuse. It is not the Government’s intention to lay innocent members of the public open to prosecution. It is for this reason that the defence recognises the circumstances in which the pesticide ingredients listed on an order will be legitimately held in a person’s possession. However, once a person has no legitimate use for a prescribed pesticide, its retention cannot be justified and it should be safely disposed of.

Garden sheds have been mentioned. We should understand that only those pesticides containing active ingredients listed under the order will be covered by the clause. There will not be a witch hunt of amateur gardeners for what they might inadvertently have in their garden shed. If they have a legitimate use for the ingredient that becomes prescribed, even if the product has been withdrawn, it will still be legitimate for them to have it in their possession.

My hon. Friend the Member for Bridgend asked about publicity. The Secretary of State will have an obligation to publicise when making an order prescribing the pesticides to which the offence will apply. Clause 43(8) states:

“The Secretary of State must take such steps as are reasonably practicable to bring information about the effect of an order under subsection (1) to the attention of persons likely to be affected by the order.”

Those people who might have a pesticide for which there is no legitimate purpose will be given notice by the Secretary of State that they should dispose of it or they will be committing an offence. If amendment No. 63 were accepted, as long as someone claimed that they had a legitimate use for the substance once upon a time, they could claim the defence in perpetuity. The previous legitimate use would in practice be impossible to prove, and I argue that the amendment would render the offence unenforceable. Sufficient safeguards have been introduced to ensure that the innocent will not be open to vexatious prosecutions. The list of prescribed pesticides will be subject to the prior consultation that I set out, and the Secretary of State is required to draw the list of pesticides prescribed by order to the attention of those members of the public who are likely to be affected.

Peter Atkinson (Conservative, Hexham)

This is a technical point. Let us suppose that someone keeps in their garden shed a chemical that is prescribed but has a use on potato crops. The person then decides not to grow potatoes for two or three years. Would keeping the chemical there be a legitimate use on the basis that they might grow a further crop of potatoes in future?

Jim Knight (Labour, South Dorset)

I would have thought that if the person can demonstrate that it is likely that they will cultivate potatoes and will require the pesticide, that will be a legitimate defence. The court will have to judge every circumstance on the basis of what we are saying and, as ever in law, we are talking about what is reasonable. If someone could reasonably show that they had a history of growing potatoes on their allotment and they were likely to grow potatoes in future, it would be reasonable and legitimate to keep that pesticide.

Amendment No. 64 would have the undesired effect of giving those who use a pesticide to cause harm to wild animals and birds an additional six months to replace it with an alternative product that does not contain an ingredient listed in the order. Perhaps that is not the intent of the hon. Member for South-East Cambridgeshire. There will be plenty of time for those who do not have the intentions described to dispose of products for which they do not have a legitimate use. A process would have to be gone through to add ingredients or products to the list by order in this House. There would be adequate consultation and adequate publicity would be attached to it, so I do not consider it necessary to allow an extra six months for people to find an alternative product. On that basis, I invite the hon. Gentleman to withdraw the amendment.

James Paice (Conservative, South East Cambridgeshire)

We all share the same objective. As my hon. Friend the Member for Hexham pointed out, when we look at the list of incidents in 2003, we see that there is no justification for them. Most of the species that were poisoned in those incidents pose no threat to any form of shooting interest, be it on lowland, grouse moor or anywhere else, so whoever was responsible for the poisoning had no vestige of an excuse—not that I am suggesting that anyone could.

I do think, however, that the Minister may not quite have taken on board the import of what is proposed. I am sorry that he did not address the fact that we are reversing the burden of proof in the legislation. The message is, “You will be guilty unless you can prove that you have a good reason for keeping the pesticide.” His response to the intervention by my hon. Friend the Member for Hexham about someone who says, “I used it to grow potatoes and might do so again,” seemed to be completely at odds with his earlier rebuttal of my amendment No. 63, when he said that he could not accept it because it would be an open-ended excuse for someone who said that they used to use it. The two do not sit together.

The Minister needs to examine his stance. It is perfectly reasonable for someone to say that they have a product in the shed. I have used the phrase “garden shed”, which has been picked up and used repeatedly by other hon. Members, but I am talking about any facility, whether it is the garden shed, farm building or even the dog kennel, which is where some people keep pesticides out of harm’s way because the dog stops anyone intruding.

I understand the Minister’s point that it is difficult to prove intent, but wherever pesticides are held, it is perfectly reasonable for people to say that they have kept them to grow potatoes in the garden, or to grow a crop if they are farmers, but that they do not use them any more, although they might do so again. His response to my hon. Friend the Member for Hexham suggested that he agreed with me, so his reason for rejecting my amendment No. 63 is odd.

As for amendment No. 144, I have already referred to the burden of proof. I accept that intent is difficult to prove, but I want to draw from the Minister what the clause is trying to achieve. That is why, with all due respect, his more generalised remarks about the clause suggest that he has not fully taken on the board the point that my hon. Friend the Member for Hexham and I were trying to make, which is that if people have malign intent and want to continue to set poison for birds, they will find a poison to do it with, even given the list in the schedule. I do not know what will be included in the schedule, but as I said, there are several poisons that it is reasonable for most people who live in the country to have. There are, for example, poisons for use against moles and rats.

We have not even embarked on products for humans. I do not know how many paracetamol tablets it would take to kill a bird of prey. Perhaps we should not speculate about that, but I am sure that a certain dose would kill it. I am concerned that people who want to find a way round the legislation will do so, and that we will have legislated to no overall gain.

I am sorry that the Minister chose to use a hypothetical gamekeeper as his example, because although he readily accepted that most gamekeepers are good, worthy and sound citizens, the mere fact that he used a gamekeeper as an example simply serves to underline the belief that gamekeepers are the problem.

Jim Knight (Labour, South Dorset)

I do not want to repeat myself, but although I know that not all gamekeepers use poison, I know that other gamekeepers do. I heard of a particularly horrific incident in the west country this weekend, which may well implicate people who raise pigeons. We all accept that there is a problem and that we must do something about it, but I do accept that gamekeepers are not the only ones who use poison.

James Paice (Conservative, South East Cambridgeshire)

I am grateful for that. I, too, am aware of suspicions that people who raise pigeons are also involved.

I was astonished that the Minister read out that amendment No. 64 would simply provide people with another six months to find an alternative poison. That was a contemptuous response to an important point, which was the point made by the hon. Member for Bridgend about publicity; people must be given time to learn what is on the schedule and what is being banned, and to dispose of it. That is all that I am seeking. If six months is not right, I am happy to discuss what is, but simply to dismiss the amendment on the grounds that it is intended to buy time for people to find something else is outwith the spirit of the Committee’s debate so far, and I regret that very much. The purpose of the amendment is purely to provide the opportunity for people to learn what is happening.

There are many other issues in this section of the Bill that my hon. Friends and I wish to debate, so I shall not press the amendment to a vote, particularly as there are probably others of equal, if not more, importance. However, this has been an opportunity not just to discuss the amendment but to rehearse the purpose of the clause and my humble reservations and those of my hon. Friend the Member for Hexham as to whether the Government will achieve the objective that we all seek to achieve. In order to make progress, I beg to ask leave to withdraw the amendment.

Colin Breed (Liberal Democrat, South East Cornwall)

I have listened to all that has been said. When my hon. Friends and I first read the clause, we had certain reservations, which have all been teased out in one way or another. First, the fact that the clause is headed, “Possession of pesticides harmful to wildlife”, when what we really want to prosecute is the use of pesticides to harm wildlife. I recognise the difficulty in obtaining evidence of use. People would have to be roaming all over the place and it would be difficult to gather evidence. Thus, we come down to the next best thing—possession.

The cause of all the problems is that sufficient evidence cannot be obtained to prosecute people for use, so the prosecution must be for possession. In many respects, the clause is a sledgehammer to crack a nut. It is draconian and has spread outwards and caused great difficulties in respect of legitimate possession of material, ingredients or substances that could be used to poison wildlife if such were the intention. We then come to the difficulties of proving intent. First, use cannot be proven; therefore, it comes down to possession. Now intention must be proven, and that involves many difficulties.

The Minister referred to the whole idea of catch-up. I suspect that a constant succession of statutory instruments will be introduced to add other substances to the list. Presumably, every time one is added, there will be another six-month period. There will be six months for this one, and a different six months running into yet another six months. There will be a succession of six-month periods starting one month after the other.

There will be vexatious allegations. Already a considerable number of vexatious allegations are made about police going around looking at all sorts of things on farms and estates—not in potting sheds or garden sheds but on estates. I regret that people will make such allegations and that police time will be wasted.

My colleagues and I did not table amendments on the clause, which deals with a very difficult area. We recognise that the Government have tried to get as close as they possibly could to a solution, but we must register our real reservations about the clause. There will be difficulties in addressing the problem, and it could spread into other areas. The clause could create unintended consequences.

Clause 44 - Enforcement powers in connection with pesticides

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 124, in clause 44, page 16, line 10, leave out subsections (1) to (3).

Eric Forth (Conservative, Bromley and Chislehurst)

With this it will be convenient to discuss the following amendments:

No. 65, in clause 44, page 16, line 10, after ‘inspector’, insert

‘who suspects with reasonable cause that an offence is being committed under section 43’.

No. 125, in clause 45, page 16, line 29, leave out ‘and 44’ and insert

‘44, [Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant]’.

New clause 4—Enforcement powers in connection with pesticides: entry and search without a warrant—

‘(1)If a constable or an inspector reasonably suspects—

(a)that a relevant offence is being or has been committed on any premises, or

(b)that evidence of the commission of a relevant offence is to be found on any premises,

he may at any reasonable time enter the premises and search them for evidence of the commission of a relevant offence.

(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.’.

New clause 5—Enforcement powers in connection with pesticides: entry and search by force without a warrant—

‘(1)If a constable or an inspector reasonably believes—

(a)that evidence of the commission of a relevant offence is to be found on any premises, or

(b)that evidence is likely to be removed, destroyed or lost before a warrant can be obtained and executed,

he may at any time enter the premises and search them for evidence of the commission of a relevant offence.

(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.

(3)A constable or an inspector exercising powers under subsection (1) may (if necessary) use such force as is reasonable in the exercise of those powers.

(4)An inspector may not exercise the power of entry conferred by subsection (1) between the hours of 11 p.m. and 5 a.m. unless accompanied by a constable.’.

New clause 6—Enforcement powers in connection with pesticides: entry and search with a warrant—

‘(1)If, on an application by a constable or an inspector, a justice of the peace is satisfied—

(a)that there are reasonable grounds for believing that—

(i)a relevant offence is being or has been committed on any premises, or

(ii)evidence of the commission of a relevant offence is to be found on any premises, and

(b)that one or more of the conditions in subsection (2) is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence.

(2)The conditions are—

(a)in the case of any part of premises which is used as a private dwelling, that the occupier of the premises has been informed of the decision to apply for the warrant;

(b)in the case of any part of premises which is not used as a private dwelling, that the occupier of the premises—

(i)has been informed of the decision to seek entry to the premises and the reasons for that decision,

(ii)has failed to allow entry to the premises on being requested to do so by a person mentioned in section [Enforcement powers in connection with pesticides: entry and search without a warrant] (1) or [Enforcement powers in connection with pesticides: entry and search by force without a warrant] (1), and

(iii)has been informed of the decision to apply for the warrant;

(c)in either case—

(i)that the premises are unoccupied, or the occupier is absent, and notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or

(ii)an application for admission to the premises or the giving of notice of intention to apply for the warrant is inappropriate because—

(a)it would defeat the object of entering the premises, or

(b)entry is required as a matter of urgency.

(3)References in subsection (2) to the occupier of premises, in relation to any vehicle, vessel, aircraft or hovercraft, are to the person who appears to be in charge of the vehicle, vessel, aircraft or hovercraft, and “unoccupied” shall be construed accordingly.

(4)Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60) shall have effect in relation to a warrant issued under this section to an inspector as they have effect in relation to a warrant so issued to a constable.

(5)A constable or an inspector exercising—

(a)powers under a warrant issued under this section, or

(b)powers under Schedule 1 in connection with the execution of such a warrant,

may (if necessary) use such force as is reasonable in the exercise of those powers.’.

James Paice (Conservative, South East Cambridgeshire)

Clause 44—

Natural Environment and Rural Communities Bill - Standing Committee A

Clause 44 - Enforcement powers in connection with pesticides

Janet Anderson (Labour, Rossendale and Darwen)

I remind the Committee that with this it will be convenient to consider the following amendments:

No. 65, in clause 44, page 16, line 10, after ‘inspector’, insert—

‘who suspects with reasonable cause that an offence is being committed under section 43’.

No. 125, in clause 45, page 16, line 29, leave out ‘and 44’ and insert—

‘44,[Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant]’.

New clause 4—Enforcement powers in connection with pesticides: entry and search without a warrant—

‘(1)If a constable or an inspector reasonably suspects—

(a)that a relevant offence is being or has been committed on any premises, or

(b)that evidence of the commission of a relevant offence is to be found on any premises,

he may at any reasonable time enter the premises and search them for evidence of the commission of a relevant offence.

(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.’.

New clause 5—Enforcement powers in connection with pesticides: entry and search by force without a warrant—

‘(1)If a constable or an inspector reasonably believes—

(a)that evidence of the commission of a relevant offence is to be found on any premises, or

(b)that evidence is likely to be removed, destroyed or lost before a warrant can be obtained and executed,

he may at any time enter the premises and search them for evidence of the commission of a relevant offence.

(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.

(3)A constable or an inspector exercising powers under subsection (1) may (if necessary) use such force as is reasonable in the exercise of those powers.

(4)An inspector may not exercise the power of entry conferred by subsection (1) between the hours of 11 p.m. and 5 a.m. unless accompanied by a constable.’.

New clause 6—Enforcement powers in connection with pesticides: entry and search with a warrant—

‘(1)If, on an application by a constable or an inspector, a justice of the peace is satisfied—

(a)that there are reasonable grounds for believing that—

(i)a relevant offence is being or has been committed on any premises, or

(ii)evidence of the commission of a relevant offence is to be found on any premises, and

(b)that one or more of the conditions in subsection (2)is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence. (2)The conditions are— (a)in the case of any part of premises which is used as a private dwelling, that the occupier of the premises has been informed of the decision to apply for the warrant;

(2)is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence.

(2)The conditions are—

(b)in the case of any part of premises which is not used as a private dwelling, that the occupier of the premises—

(i)has been informed of the decision to seek entry to the premises and the reasons for that decision,

(ii)has failed to allow entry to the premises on being requested to do so by a person mentioned in section [Enforcement powers in connection with pesticides: entry and search without a warrant] (1) or [Enforcement powers in connection with pesticides: entry and search by force without a warrant] (1), and

(iii)has been informed of the decision to apply for the warrant;

(c)in either case—

(i)that the premises are unoccupied, or the occupier is absent, and notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or

(ii)an application for admission to the premises or the giving of notice of intention to apply for the warrant is inappropriate because—

(a)it would defeat the object of entering the premises, or

(b)entry is required as a matter of urgency.

(3)References in subsection (2) to the occupier of premises, in relation to any vehicle, vessel, aircraft or hovercraft, are to the person who appears to be in charge of the vehicle, vessel, aircraft or hovercraft, and “unoccupied” shall be construed accordingly.

(4)Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60) shall have effect in relation to a warrant issued under this section to an inspector as they have effect in relation to a warrant so issued to a constable.

(5)A constable or an inspector exercising—

(a)powers under a warrant issued under this section, or

(b)powers under Schedule 1 in connection with the execution of such a warrant,

may (if necessary) use such force as is reasonable in the exercise of those powers.’.

James Paice (Conservative, South East Cambridgeshire)

I am sorry that you missed this morning’s debate, Mrs. Anderson, because it was not only interesting but was a precursor to this afternoon’s. Clause 44 is about enforcement powers in connection with pesticides. This morning I referred to my sorrow that this part of the Bill had not been the subject of widespread consultation, because I am certain that, had it been, clause 44 would not have been written as it is. The wording provides extremely wide, and in my view unacceptable, powers of enforcement for inspectors. Subsection (1)(a) allows an inspector to enter

“any premises for the purpose of ascertaining whether an offence is being committed under section 43”,

and subsection (1)(b) says that an inspector may

“require any person whom he reasonably believes has information about the formulation”

and so on to give him that information. It almost smacks of interrogation.

I have looked at legislation that might be considered analogous. The Food and Environment Protection Act 1985, which is referred to in subsection (4), refers largely to the issue of entering vessels, aircraft, containers and, particularly, dwellings. It does not, to any extent, refer to entering farm buildings, the garden sheds that we discussed so much this morning or many other places. I also looked at what is perhaps an equally analogous piece of legislation in the draft Animal Welfare Bill, and the Minister may recognise it as the source of many of the amendments. It has been published for consultation, and I hope that it will soon be a real Bill.

The powers in those Bills are much more detailed than those in this. It is pointless to go into each at this stage, but they clearly lay out the powers of inspectors and constables. They segregate the issues of premises and dwellings and mention when people require warrants if somebody is refusing to provide entry. Most important—this is common to much enforcement legislation but is missing from clause 44—is the statement that the inspector or constable must have just cause to believe that an offence is being committed.

My biggest concern about clause 44 is that it provides a complete and utter opportunity for open access. Under police legislation, even a police officer, if he enters premises, has to have justifiable reason to believe that an offence is being or is about to be committed. That is not evident in the Bill.

Amendment No. 65 seeks to remedy that; it is my de minimis proposal. It would insert the issue of the inspector having reasonable cause to enter premises and to carry out the actions listed in subsection (1). That is, I believe, the minimum alteration that should be made, but I prefer, and commend to the Government—albeit that they entail a larger and, the Minister might argue, more unwieldy change—amendments Nos. 124 and 125 and new clauses 4 to 6. They are lifted from the draft Animal Welfare Bill, and they delineate much more clearly the responsibilities and powers of inspectors who think that there is a problem, as well as the role of the constable and the issue of warrants, with a differentiation between premises.

The Minister could—I have not tabled an amendment to this effect—use the powers of the Environmental Protection Act 1990 as it applies to inspectors. My reading is that clause 44(4), which refers to schedule 2 to the Food and Environment Protection Act 1985, is too narrow to deal with my concerns. Those are that the provision will enable inspectors—we shall deal in later amendments with the question of who the inspectors might be—to enter any premises, be they land or buildings, dwellings or otherwise, on their own decision, without having to demonstrate just cause, and to search for the pesticides that we debated this morning, or any formulation or other information about them, simply to ascertain whether an offence is being committed under section 43. That is far too wide a provision.

One could say a great deal about the matter, but I am not a lawyer and I shall not go into the depths of legal language about the powers of inspectors. The point is made. I am convinced that the clause will not stand. On the advice that I have received, it will be changed at some stage during the passage of the Bill, because it would give an inspector powers out of all proportion to the offence created under clause 43. I hope that the Minister will take that on board and realise that it is necessary to set sensible limits to powers, that there should be a distinction between entry to land or ordinary premises and people’s dwellings, and that the inspector should have a justifiable reason for gaining such entry, which is not what the Bill provides.

I hope that the Minister will accept that the clause involves a fundamental problem and that the far-reaching powers that it gives to the inspector are out of all proportion to the offences and, indeed, the sentences, that we discussed earlier.

Colin Breed (Liberal Democrat, South East Cornwall)

I do not want to reiterate what the hon. Member for South-East Cambridgeshire (Mr. Paice) said, but I sense a certain déjà vu. I was on the Committee that considered the Animal Health Act 2002, and powers of enforcement were much debated and disputed. They were hugely draconian. Perhaps some proportionate enforcement was justified then, because we were looking back to the foot and mouth crisis, when it was sometimes difficult to gain entry to property to inspect animals and ensure that slaughter was arranged quickly, for everyone’s benefit and to avoid the spread of the disease. However, I think that every member of the Committee considered the original drafting of the provisions unreasonable, even in light of that terrible, tragic episode, which hit agricultural and rural communities so hard.

We must bear in mind what the powers are for. We do not need them to allow us to enter premises with the speed that was required for the testing of animals for foot and mouth. Most people recognise that there is sometimes a need to enter properties, particularly if they are empty or the relevant person cannot be reached, but the powers must be proportionate. We ought not to lift powers from one piece of legislation to another and pass them through willy-nilly.

As we discussed in our debates on clause 43, we are talking about possession, rather than use and about intent. There is time for proper, proportionate and reasonable powers to be drafted. The issue revolves around three points, the first of which is justification. There must be clear justification. I compare the Bill to the Animal Health Act again. In the Act, a suspicion that an animal might well be affected may be enough, but in relation to this legislation, inspectors should have proper justification for entering premises.

The second point is about giving notice. In such circumstances, people should be given some notice. Some might argue that people might then run away and hide evidence, but I think that some notice might be appropriate.

A third point to consider is the time of day or night, about which the measure says nothing. Are we really going to allow inspectors to bang on people’s doors at 6 am to see whether there is a pot of pesticide in the barn? The enforcement powers should have some reasonableness to them, so that we do not move down the line of having some sort of police state. Even those who justifiably want to enter premises probably feel that they ought not to charge in without notice at any time of day or night in interrogation mode.

There is scope for the Government to recognise that we are discussing issues of possession and intention and that a relatively small number of incidents will be caught by the measure. We are not talking about the huge problems that were involved with foot and mouth. I hope that the Minister is prepared to reconsider the powers, even at this stage, and make them more reasonable and proportionate.

Madeleine Moon (Labour, Bridgend)

It may help if I share with the Committee the regulatory and inspection powers that I held as an inspector. Under the heading “Authority to enter and inspect”, my card stated:

“The person named overleaf is authorised to enter and inspect premises to inspect and interview persons, to inspect arrangements, documents and other records and material and take other action in accordance with”

care standards legislation.

The hon. Member for South-East Cornwall (Mr. Breed) talked about justifiability. It will be helpful for Committee members to know that inspectors are extremely busy, and that they do not spend their time thinking, “I am a bit bored today—let me see which door I can knock on and what pesticides they’ve got.” Inspectors are often out late at night, and are sometimes out early in the morning, but only with justification. The work is busy and onerous, and actions have to be justified to line managers. I assure the hon. Gentleman that the people who he describes as worrying about receiving a knock on the door at 2 am to have their paint or garden shed examined need not worry too much.

James Paice (Conservative, South East Cambridgeshire)

I suggest to the hon. Lady that there is a significant difference between a care standards inspector and somebody—we do not yet know who, as we have not debated that point—who will act as an inspector under the clause. There is nothing in the clause to say who inspectors will be or who they will be employed by—if, indeed, they will be employed by anybody. All that they will need is written authorisation from the Secretary of State. They will not necessarily be the busy, full-time employees whom the hon. Lady describes. The clause is so wide that any comparison that she makes will not necessarily be accurate, because we do not know what we are talking about. Even so, I suggest that there is a great gulf between what might happen in the care homes to which she refers and the offence that we are discussing, which, as the hon. Member for South-East Cornwall said, is only an offence of possession.

Madeleine Moon (Labour, Bridgend)

My point is that people who are given the onerous task of carrying out the role of inspecting any facility or service have backgrounds of understanding and knowledge. Their roles are to follow through on legislation, their powers are not arbitrary but contained in legislation, and their responsibilities are clearly set out in their job descriptions and role specifications. I am sure that we will hear from the Minister that such provision will be in place for these inspectors. If it were not so, I would support the hon. Gentleman.

James Paice (Conservative, South East Cambridgeshire)

But it is not so. Read the Bill.

Madeleine Moon (Labour, Bridgend)

We should wait to hear what the Minister has to say. I am sure that he is sensible and cautious enough to ensure that any provision for inspection on behalf of Government legislation will be set up appropriately, and that appropriate constraints will be in place, as they are for all other inspectors in the various fields in which they operate.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I listened carefully to the hon. Member for Bridgend. She mentions other inspectors, but part of the problem is that businesses in this country are so over-inspected that they do not know who will knock on the door next; it could be Her Majesty’s Revenue and Customs, health and safety, representatives of the Assembly or the Department for Environment, Food and Rural Affairs, or someone about animal welfare.

John Mann (Labour, Bassetlaw)

That is a rather extravagant statement. Can the hon. Gentleman back it up? I had my own business for eight years, and I do not recall streams of inspectors calling.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

Well, I can put my hand on my heart and say that I have had an inspection from every one of the inspectors I have mentioned. The last time that I was inspected by Customs and Excise, the officer said that my records were so good and my compliance so great that he would not need to see me again this century. Actually, he was talking about last century, but I have not seen him since.

There is an accumulation of inspectors, and that is a huge pressure on businesses, particularly small businesses, which may be owned and run by one person. A number of us are concerned about the fact that another form of inspection can take place under the Bill. Almost six months’ notice is given for school inspections, but I doubt whether the inspectors or constables who will carry out these inspections will give six months’ notice.

My business was inspected last week to determine whether its farm assured status could be renewed and the inspectors found an out-of-date animal medicine bottle—not that we were going to use it. I must tell the Committee that a case recently came to my notice of a doctor who used out-of-date medicine on a patient in my constituency, yet we were criticised for having an out-of-date animal medicine that we did not intend to use on our farm.

There is a build-up of stress because people are vulnerable to this type of inspection. We must view the issue with great concern, and I am not surprised that the hon. Member for South-East Cambridgeshire and my hon. Friend the Member for South-East Cornwall are making a point about it. I do not think that the measure will stand.

Jim Knight (Labour, South Dorset)

I welcome you back to the Chair, Mrs. Anderson. This is an interesting and important subject. As the hon. Member for South-East Cambridgeshire said, we have had our debate on clause 43. Clause 44 seeks to introduce the powers that will be available to inspectors appointed by the Secretary of State or the National Assembly for Wales for enforcing the clause. We agreed on both sides of the Committee that we were all motivated by the importance of taking action to deal with the poisoning of birds with pesticides. In speaking to the amendments, we must bear that in mind. I shall clarify what those powers are, and why we need to take such powers, which are wide-ranging but restricted to enforcing clause 43. They are not powers for inspectors to do anything that they like, but they are powers in respect of possession of pesticides that are harmful to wildlife. They are powers of entry to premises to check whether a person is storing a pesticide containing a prescribed ingredient without lawful authority; powers to search a house where an inspector reasonably suspects such a pesticide is being stored, but only where a warrant from a justice of the peace has been obtained; powers to seize any substance that an inspector has reasonable grounds to believe is a pesticide containing a prescribed ingredient; and powers to bring with them other persons or equipment to assist in performing their duties. They are wide-ranging powers in respect of enforcement of clause 43, but are so because of the nature of the problem.

I shall characterise the nature of the problem with an example. An inspector discovers a dead bird of prey, and it is clear that the bird has been poisoned. It is not clear by whom, but birds fly so it must be someone within the range of the flight of that bird. It then falls on the inspector to enforce the law, because it is illegal to poison birds, and find whoever is guilty of the offence.

As we discussed this morning, it is difficult to enforce the original Wildlife and Countryside Act 1981 offence of poisoning birds, because circumstantial evidence cannot be used, and it must be properly proved that a particular individual committed the offence. Clause 43 introduces an offence of possession of prescribed pesticides. That is why the powers are wide. The inspector can politely knock on someone’s door and ask to inspect the premises. If it is a door to a dwelling, they must have a warrant from a justice of the peace, but if it is a gate to premises, such as to land or to a shed, they can go in and inspect. That allows for enforcement to deal with a problem that we all agree is a serious one.

James Paice (Conservative, South East Cambridgeshire)

Two quick points. First, if it is not a dwelling, the inspector can go in. So whatever the circumstances and whatever reason the owner may produce for not allowing an inspector in at that particular time of day, such as something else happening or some form of disease risk, they can still go in. Secondly, how can the Minister possibly justify giving an inspector in this case more powers to deal with the offence? The bird is dead, so timing cannot be quite as much of the essence as they are in circumstances relating to the draft Animal Welfare Bill. In that Bill, where a live animal may be suffering, it is not proposed to give the inspectors such urgent powers of entry as in this Bill.

Jim Knight (Labour, South Dorset)

The hon. Gentleman talks about any time, anywhere—we are almost back to Martini again—but DEFRA’s guidance to Rural Development Service staff is that “reasonable hours” means 7 am to 7 pm, so we are not saying, “any time,” but, “what is reasonable.” As my hon. Friend the Member for Bridgend has said, inspectors act reasonably, and they will act when they suspect that an offence has been committed.

We will discuss the identity, training and quality of inspectors in our debates on later amendments, but I can assure the hon. Member for South-East Cambridgeshire that, in my limited period in office as a Minister, I have been very impressed with the quality of inspectors and the advice that they have given me on a range of subjects.

The hon. Member for South-East Cambridgeshire said that the inspectors had more powers than animal welfare officers. I am content that the very specific powers that we are giving inspectors to deal with a specific problem, which we all agree is a difficult one to tackle, are sufficient. I have not read the draft Animal Welfare Bill, although perhaps I should, and until I do I am not in a position to judge whether the powers that it grants to deal with various offences are appropriate. I am sure that the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Exeter (Mr. Bradshaw), who will pilot the Bill through Committee, will have made that judgment and that it will be an excellent one.

The hon. Member for South-East Cambridgeshire says that the Food and Environment Protection Act 1985 does not contain powers of entry to buildings, sheds and so on, but it does. Section 19(2) allows an inspector entry to any land, including buildings and sheds, where pesticides are stored or have been applied to land.

James Paice (Conservative, South East Cambridgeshire)

Where does the clause refer to section 19(2) of the Food and Environment Protection Act 1985? Clause 44(4) refers only to implementing schedule 2 to the Act; it does not refer to buildings.

Jim Knight (Labour, South Dorset)

I am referring to what I understood the hon. Gentleman to mean when he talked about our extending powers that are not in FEPA, and I am trying to make it clear that section 19(2) of FEPA does contain those powers. Whether or not the clause refers to them is irrelevant to the point that I am trying to make. I apologise to the hon. Gentleman if that is not clear.

I want to make a substantial point about the amendments. The role of an inspector authorised by the Secretary of State to gather information on the possession of pesticides containing a prescribed ingredient should not be confused with the role of, say, a police officer who can gather evidence that may be used in a criminal prosecution. Some of the amendments do create that confusion.

Wildlife inspectors authorised under the Bill will not have powers under the Police and Criminal Evidence Act 1984. Their function is purely to gather information that can inform a criminal investigation. They will not, however, gather evidence to inform a prosecution. That is the job of the police, who may be assisted by an inspector. If they are assisted by an inspector, they will be governed by a code of the Police and Criminal Evidence Act 1984, in which they are trained.

Colin Breed (Liberal Democrat, South East Cornwall)

Will the Minister give way?

James Paice (Conservative, South East Cambridgeshire)

Will the Minister give way?

Jim Knight (Labour, South Dorset)

I give way to the hon. Member for South-East Cornwall.

Colin Breed (Liberal Democrat, South East Cornwall)

I suspect that the hon. Member for South-East Cambridgeshire and I are both thinking the same thing. Will the Minister confirm that the inspector merely has a chat with people when he goes in; that he does not go rummaging around for actual evidence, but simply talks to the landowner, the estate manager or whoever, and then, presumably, disappears again?

Jim Knight (Labour, South Dorset)

The inspector can enter and inspect, and he or she can look at whatever the powers say that he or she can look at. The hon. Gentleman must bear in mind, however, that an inspector does more than a police constable. A constable deals with collecting criminal evidence for a criminal investigation. An inspector deals with licensing, and may be looking at whether a licence is being breached or is appropriate. An inspector will be doing all sorts of things in the course of his or her duties.

If the inspector is part of a criminal investigation, accompanying a constable or otherwise, the inspector is governed by the Police and Criminal Evidence Act 1984 and is subject to code B of that Act. I hope that that is helpful. I took a while on the matter myself when I was talking to officials earlier.

James Paice (Conservative, South East Cambridgeshire)

The Minister said a few minutes ago—he may wish to revisit this—that the inspector is not required to comply with PACE as he is not gathering evidence. I think that I heard him right. Yet in subsections (1)(b) and (c), it is clear to a layman that the inspector is gathering evidence. Initially, he is seeking information, but in paragraph (c) he is seizing

“any substance found on the premises, if he has reasonable grounds for believing that it is evidence of an offence”.

It is not too far fetched to suggest that the seizure of that substance may be the only evidence. The inspector goes into a chap’s house, garden, building, shed or wherever and finds a tin of X, which he believes to be an illegal substance. If he takes it away and the chap subsequently denies it was ever there, and it has not been gathered as evidence under PACE, the whole prosecution will fall apart. I find it difficult to follow the Minister’s statement that the inspector is not governed by PACE.

Jim Knight (Labour, South Dorset)

This is far from straightforward. If I mislead anyone, I shall certainly correct myself as soon as I can. My understanding is that if inspectors are going in and seizing property because they suspect that an offence has been committed, they are gathering information that may inform a criminal investigation. They may then go to a constable and say, “An offence has taken place. I have confiscated this item.” The constable may then return to pursue a criminal investigation, and that will all be governed by PACE.

Madeleine Moon (Labour, Bridgend)

Perhaps I can provide some assistance, although I can comment only on the powers that I had as an inspector. I would inspect up until the point when I suspected that there was an offence. If I reached that point, I would stop and give a caution under PACE. What I proceeded to do then would be governed by PACE. I would act as an inspector, but at the point at which I had a concern, I would then read a caution and move forward to use the PACE provisions. I carried both powers, but I implemented the PACE powers only after notifying the person that I was moving into that area.

Jim Knight (Labour, South Dorset)

That is a helpful clarification of the experience of an inspector. I was about to say that it is important to clarify the difference between an inspector who is inspecting and a constable who is pursuing a criminal investigation. Obviously, the constable is governed by PACE. There are circumstances in which an inspector may be governed by it, but otherwise he will be governed by the powers in the Bill. It may be helpful if, after I have managed to extract a clearer note from my friends, I write to the Committee, spelling out the matter in a way that I have clearly failed to do this afternoon.

It may be some comfort to the hon. Member for South-East Cambridgeshire to know that we have sympathy with amendment No. 65, which attempts to deal with the problem of fishing trips. If he likes, he can chalk it up as a victory, but that is as good as he is going to get for now. There is a view among some that inspectors should not engage in what has been described as fishing trips. However, because birds often fly away before they die after eating poisoned bait, inspectors may not know on which land such bait has been used and might need to visit a few nearby premises. In addition, they might not have found any evidence of dead or dying birds and might just be reacting to information supplied to them about suspicious activity.

The powers available to inspectors must be able to address those situations. A failure to have powers that are fit for purpose is likely to result in a failure to achieve our policy and to make clause 43 work. We cannot accept amendment No. 65 because it constrains our ability to deliver the clause properly. We understand the concerns that the hon. Gentleman and others have expressed. We would like to go away and consider carefully whether we can find a form of words that meets his concerns about reasonableness. I hope that on that basis, he is happy to withdraw the amendment.

James Paice (Conservative, South East Cambridgeshire)

It is nice to end on a slightly higher note.

I appreciate and welcome the Minister’s offer to write to Committee members. That would be helpful. We are slightly pre-empting a later debate, but the issue of whether or not inspectors operate under PACE is important. It is clear that paragraphs (b) and (c) are about gathering evidence. As I understand it, if the information in subsection (1)(b) that the inspector requires from a person is to be used in criminal prosecution, it would have to have been gathered under PACE. I am not a lawyer, but a layman. It seems to me that to carry out subsection (1)(b), the inspector would have to be operating under PACE for the information to be admissible. I look forward to the Minister’s clarification—perhaps he does too.

I remain concerned about premises. In answer to my earlier intervention, the Minister referred to subsection 19(b) of the Food and Environment Protection Act 1985, but that does not appear in this provision. My concern is that the only bit of FEPA that is referred to in clause 44 is schedule 2, and that is in the context of the introductory section; the assistance for officers, which the Minister mentioned; powers in relation to vessels’ aircraft, which I suggest are probably not that relevant to this debate; opening and searching containers, although it is unclear whether that refers to a tablet bottle or to a cross-channel container; evidence of officers’ authority; time of performance; entry into dwellings; power of officers to use reasonable force; protection of officers; and defences. There is no reference to any other form of premise.

That is why there is a disjunction between subsection 1(a), which refers to an inspector being able to “enter any premises”, and this provision, which appears to relate only to a limited type of premises.

Jim Knight (Labour, South Dorset)

I want to clarify the relationship with FEPA. I referred to section 19. There are powers in that Act to enter land, including buildings and sheds. Officers currently operate under powers contained in section 19 and schedule 2 of FEPA. However, because of the far-reaching nature of the offence that we outlined in clause 43, we considered it necessary to constrain those wide-ranging powers as we have done in clause 45, in relation to what they would have been had we retained them in section 19.

James Paice (Conservative, South East Cambridgeshire)

That is helpful and I am grateful to the Minister. It brings me to the amendments. I still find things somewhat puzzling. I do not argue the point that poisoned birds might fly a considerable distance before falling to the ground, so it will not always be easy to trace the source of the poison. Of course I understand that that is the case. Nevertheless, at that stage no bird or animal is deemed to be suffering—although that might happen in the future—whereas the draft Animal Welfare Bill addresses the prevention of suffering.

I accept that that is not the Minister’s responsibility. He admits that he has not read that draft Bill, and there are many draft Bills that I have not read, although I have read that one. However, I am surprised that when his officials were reflecting on my amendments, bells did not start to ring, because in every respect—except, of course, for the insertion of the words “section 43” wherever relevant—the amendments are a direct lift from that draft Bill. I am surprised that the Minister was not pre-warned about that from within his Department.

Jim Knight (Labour, South Dorset)

When we talk about the single bird being poisoned, we must also have in mind that that might be part of a pattern of activity. Over the weekend, I heard about a serious incident involving peregrine falcons and the poisoning of the two parent birds. In that circumstance, one parent bird might be discovered poisoned and then, on suspicion that an offence is about to take place, action could be taken to protect the second parent bird. Therefore, we should not only think about a single bird in isolation.

James Paice (Conservative, South East Cambridgeshire)

I accept that. We all agree about what we are trying to achieve and there is no distinct difference between us on that. However, I simply make the point that when an animal is suffering at a moment in time, that is an urgent situation. The draft Animal Welfare Bill proposes to address that, but that is not replicated in this Bill.

The Minister, in a generous gesture—at least, generous in comparison with what has happened before—moved on to amendment No. 65 and accepted the principle of what I am trying to achieve. I want fishing trips—I did not use that phrase, but the Minister was correct in saying that it is the jargon that is often used—to be prohibited. Given that he accepted that, I cannot for the life of me see what is wrong with the phrase that I employed, because it is also used in much other legislation.

Amendment No. 65 simply states:

“who suspects with reasonable cause that an offence is being committed under section 43”.

That seems to me to be straightforward. However, I have been a Member of Parliament for long enough to know that Ministers are usually unable to accept Opposition amendments, even if on Report identical amendments appear in the name of the Government. That has certainly happened to me before, and if it were to happen again, I would be happy.

Jim Knight (Labour, South Dorset)

My understanding of the difficulty with “reasonable cause” as things currently stand is that there would have to be reasonable cause for each individual dwelling that was to be inspected, rather than for the generality of the dwellings in the vicinity of the incident.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for that clarification. He has conceded the principle of what I am trying to achieve, albeit he has not gone as far as I would have liked with regard to the other amendments. However, if we can insert something into the Bill to ensure that fishing trips do not happen, that would be a step forward. In light of the Minister’s spirit in that regard, I beg to ask leave to withdraw the amendment.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 66, in clause 44, page 16, line 19, leave out “a” and insert “an appropriately qualified”.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 67, in clause 44, page 16, line 21, leave out “a” and insert “an appropriately qualified”.

No. 126, in clause 45, page 16, line 38, at end add—

‘(5)“Inspector” means—

(a)an appropriately qualified person authorised in writing by the Secretary of State to exercise the powers under sections [Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant] in relation to England;

(b)an appropriately qualified person authorised in person by the National Assembly for Wales to exercise the powers under sections [Enforcement powers in connection with pesticides: entry and search without a warrant] [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant] in relation to Wales.

(6)“Relevant offence” means an offence under section 43.’.

James Paice (Conservative, South East Cambridgeshire)

This will be a shorter and simpler debate, because it addresses only the issue that the hon. Member for Bridgend (Mrs. Moon), as well as the Minister, has referred to. It is about who the inspectors are, and their qualifications. Amendments Nos. 66 and 67 would insert the phrase “appropriately qualified” to describe the person to be authorised by the Secretary of State or the National Assembly for Wales. We do not want at this stage to define appropriate qualifications, but the amendment would constitute a recognition that not just anyone could do the job.

Earlier the Minister praised inspectors from the rural development service and said that he was impressed by them. I should not argue that point. As far as I know they are fine people. However, we are discussing not particular individuals but legislation. As I said this morning, my purpose is to get the law, within which other things operate, right. We must always move ahead, focusing not just on what happens today, or on individual issues, but considering how the wording of the Bill may be implemented in the future. That is why I believe that a phrase along the lines of “appropriately qualified” is needed. We need some guarantee that it will not be just anyone who will be issued with a certificate of authorisation, or whatever form the authorisation will take. Clause 44(3) states:

“An authorisation ... is subject to any conditions or limitations specified in it.”

I do not know whether it is intended that that could encompass the issue of qualifications, but the question certainly needs to be covered.

I looked at the coverage of training in other legislation, and I return once more to the Food and Environment Protection Act 1985. I was, I must admit, surprised that it did not contain more on the subject. However, section 3, on the authorisation of investigating and enforcement officers, clearly stipulates that the individual concerned needs to be slightly better qualified than just anybody. Trading standards legislation also contains an obligation for sufficient training before someone can be a trading standards inspector. Therefore, I think that some reference to qualifications or training should be included, simply for clarity and the reassurance of people who will inevitably look on the Bill as an attack on their way of life and activities. I do not suggest that that view is accurate, but that is how some people perceive it. I hope that the Minister will continue in the spirit of generosity on which he is now embarked, and accept my very small amendment.

Jim Knight (Labour, South Dorset)

As we have heard, amendments Nos. 66 and 67 would insert the phrase “an appropriately qualified” into the definition of an inspector, before the words

“person authorised in writing by the Secretary of State to exercise the powers under this section in relation to England”

and would similarly affect the definition in relation to Wales. I read amendment No. 126 as consequential on those amendments.

Officials carrying out inspections to ascertain whether an offence is being committed under section 43 will be authorised by the Secretary of State in England, and in Wales by the National Assembly for Wales. Such persons are unlikely to hold a particular paper qualification but will be appropriately qualified, as my hon. Friend the Member for Bridgend said earlier—she used almost the exact phrase—by virtue of their background training and experience.

The amendment would not add anything useful, as the Secretary of State can give full assurance that officials have the appropriate expertise before they are authorised to carry out inspections. A requirement in the Bill for inspectors to be appropriately qualified might provide a degree of legal uncertainty that would be a distraction in court proceedings and would obstruct justice. It might be a matter for legal challenge whether a particular inspector was appropriately qualified, leading to problems with legal proceedings under clause 43.

There is a precedent in other legislation. The Wildlife and Countryside Act 1981 sets out powers relating to wildlife inspectors, as does the Food and Environment Protection Act 1985. Neither includes a requirement that inspectors should be appropriately qualified. I hope that on that basis, the hon. Gentleman will withdraw his amendment. I cannot promise to be as consistently generous as I was few moments ago.

James Paice (Conservative, South East Cambridgeshire)

If I am not mixing my metaphors, there are bigger fish to fry at this sitting. I beg to ask leave to withdraw the amendment.

Clause 46 - Protection for nests of certain birds which re-use their nests

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 119, in clause 46, page 17, line 3, at beginning insert ‘intentionally’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments:

No. 120, in clause 46, page 17, line 4, at end insert—

‘if it can be shown that the nest has been constructed or used by such a bird within the preceding 3 years’.

No. 143, in clause 46, page 17, line 4, at end insert—

‘(2A)In that section, after subsection (1) insert—

“(1A)In subsection (1)(aa) “nest” means a structure constructed by a bird for its eggs and young.”.’.

No. 109, in clause 46, page 17, line 11, at end insert—

‘Owl, BarnTyto alba Chough, Red-BilledPyrrhocorax pyrrhocorax Harrier, HenCircus cyaneus MerlinFalco columbarius Falcon, PeregrineFalco peregrinus’.

James Paice (Conservative, South East Cambridgeshire)

The clause makes it an offence at any time to damage the nest of a wild bird listed in the new schedule. Three species are listed at present, but it also gives the Secretary of State the power to add to that. Obviously, as with our discussion this morning, there cannot be any difference between myself and the Minister about the Government’s objective. I certainly support the clause as far as it goes, but I am still slightly puzzled.

I looked at the three listed species. There is one pair of golden eagles in England. There are no white-tailed or sea eagles in England. The nearest are hundreds of miles away in the Western Isles and the Hebrides. There are two or three pairs of osprey. This is not exactly a huge issue as far as those three species are concerned. I should like to think that the white-tailed eagle might progress to English or Welsh shores—or even Sheffield—but I do not think that that is very likely in the near future. Therefore inevitably there is a question mark over why the Government are doing this, particularly as I am not aware of any evidence that there is a problem.

It is already an offence to interfere with the nest, eggs or young of these, and most other, species of bird during the construction or use of the nest when the bird is using it for the purpose of hatching and rearing its young. Therefore we are talking about out-of-season interference. I am not aware of any incidents of out-of-season interference with those nests. I do not say that there has not been any, but it does not seem to be a huge issue at the moment. If the Minister has any evidence in relation to England I am sure that he will produce it in due course.

The clause provides year-round protection for nests of these species, which have one factor in common—they re-use the same nests. Again that is not common to most species of birds, although a few more than these three regularly re-use their nests. Raptors such as these three have a number of nest sites and they use them, not necessarily consecutively, year after year. They will jiggle around and use different ones every year. It is believed that that is a natural instinct, which minimises the parasites that inevitably accumulate in birds’ nests. The reason why they have a few different sites is clear, and we should do what we can to protect them.

Nest robbery is already an offence; there were no instances of nest robbery from those species in England and Wales in 2003 and just two offences in Scotland. That raises the matter, which I touched on earlier, of the possible extension of the schedule to other species. I cannot see why that would be necessary for species that do not re-use their nests. We therefore need to ask whether we are talking about a nest itself or the vicinity. If a nest is damaged or destroyed, the bird will probably be unable to use it again. However, if we are talking about a bird that nests in the vicinity—in the same area of ground or on a cliff—the situation is more difficult. Apart from anything else, proof that it was a nest site will become much harder. However, if we are just talking about damaging, out of season, a nest on a cliff or on the ground that the bird used last year or two years ago, what is to stop the bird nesting a few feet away or rebuilding the nest rather than re-using the old one? I am a bit concerned about that, and I hope that the Minister will clarify the issue of the possible extension of the schedule.

We must consider whether making such incidents an offence will become a serious problem for land managers with bracken clearance, for example. Land managers want to mow or flail bracken, annually or more often, to clear the site and prevent the bracken from invading the hillside, and to undertake hedge cutting. All manner of things, as long as they are done sensitively and out of season in the winter months or in the autumn and, on agricultural land, in accordance with the cross-compliance conditions of the single farm payment, will not interfere with bird nesting. I am apprehensive about where the overall approach of extending year-round protection is going.

In respect of the three species, I am more than happy to support the Minister on clause 46 but I question the scale of the problem—or the lack of scale of the problem, to be more precise. Is the proposal really necessary? What further action should be taken?

Amendment No. 119 would insert the word “intentional” in new paragraph (aa) in clause 46(2). I cannot see how anyone could take, damage or destroy the nests of the three species unintentionally or accidentally, given where they nest, other than crashing a light aircraft into them, as the nests are huge structures in a tree or on a cliff face, which are visible to anybody. Clearly, any damage would be intentional.

However, in the context of the extension of the schedule, we could be talking about accidental damage. For example, if the provision were extended to ground-nesting birds, somebody could easily accidentally damage a nest by bracken cutting or mowing out of season. The person might not be aware that the bird had nested there six months or a year or so earlier. Intentionality—separating out the accidental from the intentional action—therefore becomes that much more important.

Later I shall move another amendment, which refers to the word “reckless”. If the Minister were to say that he would be sympathetic to an amendment involving a reference to someone who intentionally or recklessly “takes, damages or destroys”, I would be perfectly happy. However, I am a bit concerned that, as the Bill reads, if the schedule was extended at some stage, people could find themselves prosecuted when they had not set out to damage a nest, and were not even particularly reckless.

Amendment No. 120 sets a time scale. As I mentioned, eagles and ospreys regularly have a number of nest sites and they may not use them all each year, particularly in the case of eagles. It is clearly logical that the protection extends to more than the site that they used last nesting season. However, it is not reasonable that a nest is a nest for ever and a day, which is how things stand as the Bill is drafted. There needs to be a sensible time limit that makes it clear when a nest ceases to be protected in this way—for instance, because that particular pair of birds have died or moved on and others have not taken up the nest site. I discussed this matter informally with the RSPB and it is sympathetic to the idea of a time limit. It suggested that five years might be better than three, and I am certainly not going to push for three years, but I hope that the Minister will accept the principle that one should not just include in legislation a provision stating that once an eagle has made a nest it will be protected for ever and a day, even if no eagle ever goes anywhere near it again. That detail needs to be addressed.

Amendment No. 143 seeks to define what is meant by “nest”. Again, I believe that that is necessary to make the Bill meaningful. I suspect that the Minister will say that the legislation about damaging nests when birds are using them does not define “nest”, but I think that a definition should be included in this context because we are talking about specific species and nesting sites. That is particularly the case in relation to those species that nest on cliffs or sheer faces. In some cases, the nest is a huge structure, but it is not always obvious. I am a bit concerned that if we do not define “nest” there is a risk that people will say, “Well, I once saw a bird perching there,” and therefore that spot could be construed as a nest. Once we move on to the possibility of extending the schedule to other species, that becomes more important.

Amendment No. 143 seeks to define “nest” in a way that most people would consider to be perfectly reasonable, as

“a structure constructed by a bird for its eggs and young.”

That seems pretty unequivocal. It refers to something definitive, which is better than the vague term “nest”. That will be particularly true if the schedule is ever extended, because some birds do not make nests. They just lay their eggs on a ledge, or on the ground.

Peter Atkinson (Conservative, Hexham)

Think of cuckoos.

James Paice (Conservative, South East Cambridgeshire)

Or they lay them in somebody else’s nest, like cuckoos, as my hon. Friend says. I do not expect that the Minister is planning to extend the legislation to cuckoos—but we need to define what is meant.

I consider those three amendments to be quite important in addressing weaknesses in a proposal that I entirely support in principle.

The hon. Member for South-East Cornwall and his colleagues have tabled another amendment that would extend the schedule to a further five species. As I implied in my earlier comments, that is where I begin to have some concern. I do not wish to pre-empt their advocacy of those five species, although I know the source of the proposal. However, I am concerned that such an extension would cause serious problems. Some of those species are ground-nesting birds. Some of them do not use the same nest again; they may nest in the same vicinity but they do not use the same nest. We shall get into difficulties if we allow the list to be extended.

The three species included in the schedule are wonderful, tremendous birds. It is a thrill to see them at all, and we should delight in the fact that at least two of them are in our countryside—the white-tailed sea eagle is not there yet, but I hope that it will be—and they need to be protected. I am wary in case we extend the provisions too far. I think that I have made that point thoroughly.

The three amendments I have tabled are intended to get the legislation right. They fulfil the role for us that I described this morning—as legislators trying to get it right. The amendments are not designed to negate or reduce the impact of the legislation—as I suspect some of my critics might think—they are designed to get the legislation right. I hope that the Minister will feel amenable to their spirit, if not their words.

Colin Breed (Liberal Democrat, South East Cornwall)

As the hon. Member for South-East Cambridgeshire said, amendment No. 109 would extend the schedule to cover five further birds. I am grateful to the RSPB, which helped us to draft the amendment.

The amendment’s purpose is clear: it would make the list of species in schedule ZA1 more relevant to the current situation in England and Wales. As the hon. Gentleman said, the current list includes some magnificent birds, but in relation to relevance and nesting, it does not have much to do with the clause. The species that would be added by our amendment include important breeding populations in England that would significantly benefit from year-round protection.

Either the schedule will remain as it is, with limited real benefit and effect, or it will be extended to give it some real meaning for particular birds where there is already a significant population—although I accept the point made by the hon. Member for South-East Cambridgeshire, that this would create difficulties in some areas, particularly for some farmers and others engaged in agriculture.

As has been said, several species re-use traditional nests, and sometimes a very long history of occupancy has been established. Sometimes, of course, that is one of the reasons why they are more easily targeted by those who would seek to eradicate them. Some species add nest material throughout the year, and some use the nests as roost sites outside the breeding season. In contrast to the current legislation dealing with birds nest sites, existing legislation protects bat roost sites throughout the year, even when they are not in use. There is a slight discrepancy between that and this Bill.

There is increasing evidence that the nests and nest sites of some species are deliberately targeted by individuals who want to prevent successful breeding. Examples include nest sites regularly used by ground-nesting birds of prey such as merlin and hen harrier being burned in early spring just before the birds return. Trees containing osprey nests are deliberately chopped down, as has been said, and golden eagle nests are pulled apart. Peregrine eyries are blocked with a strategically placed stone or covered in netting to prevent a scrape or a ledge from being used. That is often done in the knowledge that no offence is committed while the bird is not present, but has the desired effect of preventing birds from breeding in that area. As things stand, it is not an offence to stop birds from breeding in an area.

The Government’s UK raptor working group report for 2000 recommended that consideration be given to modifying the legislation to protect certain species’ nests from destruction outside the breeding season. Such protective legislation is already in place in Scotland. I recognise that the Minister wishes to pursue the devolved nature of the legislation—perhaps there are significantly more birds in proposed new schedule ZA1 in Scotland than not. Nevertheless, it would be sensible to co-ordinate such legislation between Scotland, England and Wales, as birds fly between them.

We must recognise that there might be occasions on which a nest needs to be removed, for health and safety reasons or as part or quarrying or forestry operations. However, that should be subject to licences issued by the Department for Environment, Food and Rural Affairs or Natural England and follow procedures under section 16 of the Wildlife and Countryside Act 1981, preferably with a condition that alternative nesting sites be provided nearby.

Of course we support the clause, but we are trying to make it more relevant to England and Wales. I am quite certain that the Minister and his officials have considered long and hard just what the extent of proposed new schedule ZA1 should be, but as drafted the provisions are not particularly relevant to England and Wales. Extending the provisions, as suggested by amendment No. 109, would provide additional protection for considerably more species, but could create difficulties for those who might damage nests and nesting sites accidentally.

James Paice (Conservative, South East Cambridgeshire)

I want to raise a difficultly that immediately occurs to me, apart from the suggestions that I made earlier. The first bird on the list in amendment No. 109 is the barn owl. I am sure that we would all want to see barn owls; indeed, we want to see them so much that in many parts of the country people put up boxes for them. Under the hon. Gentleman’s proposal, however, we would not be able to move such boxes. If I put up a barn owl box in a tree but then decided that I wanted to move it to a different tree, I could not do so without going through the huge bureaucracy of securing a licence. I am concerned that that is the sort of trap into which extending the list will lead us.

Colin Breed (Liberal Democrat, South East Cornwall)

I accept that, inevitably, as we try to extend the legislation we come across more bureaucracy. I suppose that there could be a licence, but we are entering the realms of achieving the right balance. We suggest that the balance that the Minister has struck falls short of the protection that we should be considering. This is probably the only time that we shall consider such matters. We have an opportunity, and it would be wrong not to raise the chance of giving wider protection, notwithstanding the fact that there could be certain difficulties, which I fully recognise. I will be pleased to hear what the Minister has to say, because I am sure that the issue has been well discussed in the Department in arriving at the list.

Angela Smith (Labour, Sheffield, Hillsborough)

I have much sympathy with amendment No. 109. As the hon. Member for South-East Cambridgeshire said, there is just one golden eagle nest in England and none in Wales. As has been pointed out, the white-tailed eagle does not breed at all in England. However, the species listed in the amendment are part of the English landscape, albeit in reduced numbers.

There is an old saying that we borrow the world from our children. That is never more true than in relation to wildlife. At the moment, if people want to see a peregrine falcon in my part of the world they have to travel to the Old Moor Wetland Centre in Wath-Upon-Dearne to observe the species in full flight. That is a sad state of affairs and underlines why we need to take the amendment seriously.

The hen harrier was a common bird of prey in the 19th century but was almost entirely eradicated in the same century for the purposes of grouse shooting. Just a few pairs survived in the Orkney islands. The species has managed to breed more successfully in recent years, but recolonisation is slow and still incomplete and that bird is absent from vast swathes of moorland in northern Britain. There are 520 pairs of hen harriers in the UK at the moment, but there is capacity for 1,600 pairs. That is the the room for expansion without endangering the grouse or any other species that may be preyed on by the hen harrier. There is massive room for recolonisation by the hen harrier. More than anything else, that underlines the importance of the amendment.

I understand concerns about extending the legislation because expanding protection for the nest site to the nest area is a serious matter. Although it is difficult to support the amendment, because of the extra consideration that would need to be given to extending the legislation to cover the nest site, I plead with the Minister to give the amendment serious consideration before we discuss the Bill on Report.

James Paice (Conservative, South East Cambridgeshire)

Hen harriers are wonderful birds and we want to see them. However, I am concerned that the implication of the hon. Lady’s remarks—perhaps she did not mean it, but it is certainly a perception that is shared elsewhere—is that if it were not for grouse moors or keepers, hen harriers would be fine.

The hon. Lady is right about the figures. I know their source: Dick Potts’s study came up with a figure for the potential population of harriers. However, huge swathes of our landscape should, in theory, be supporting hen harriers, but there are none there even though there is not a keeper or a shooting interest for miles. We should not grasp at simplistic solutions to the real problem of increasing harrier hen numbers.

Angela Smith (Labour, Sheffield, Hillsborough)

I take the hon. Gentleman’s point, but the damage was done in the 19th century. My comments were not meant to reflect on 20th or 21st century practices.

I have some sympathy with the new clause, which would introduce the concept of recklessness. There are signs everywhere on National Trust land in the Peak district telling people clearly not to let dogs off leads in areas known for nesting birds and during the lambing season, particularly in spring. I see no reason why serious consideration should not be given to including the amendment’s provisions in legislation now or at a later date.

The hon. Gentleman referred to other difficulties with introducing protection for ground-nesting birds, in particular nests or nesting sites that have been intentionally damaged. That should not be an insurmountable problem. In an area to the south-east of Sheffield, we have cliffs, and skylarks have been nesting there for a considerable time. That is recognised by local people and by the city council. As a result, the grass is not mown when the birds are nesting. It is not beyond our capabilities to resolve such dilemmas. It is much to the annoyance of some of the locals that the grass is not mown then, but that is sometimes the price that has to be paid for conservation.

A question was asked about the barn owl: if someone puts a box in a tree, does it mean that he will never be able to remove it? That serious point needs to be considered, but those who are keen to attract wildlife into their gardens end up on that treadmill anyway. If someone puts a feeder tube in the garden, he can never stop filling it as it will have started attracting numerous species. I live in the inner city and about 15 species of birds have been attracted to my garden. They form the habit of depending on such feeding. In that sense, most people who are keen to introduce wildlife into their gardens would never want to remove such devices, as they were sufficiently concerned about wildlife to have put that aid to conservation in place.

The reasons for opposing amendments Nos. 143, 120 and 119 have been made, but I urge the Minister to think again about amendment No. 109.

Jim Knight (Labour, South Dorset)

The amendments deal with the protection of nests for those few birds that reuse their nest year after year. It is a limited number of species, as we have heard. We all agree that they are special birds, which is why we seek that extra protection to aid reintroduction programmes and to ensure the survival of those few that we have. I shall speak to each amendment separately. First, however, I want to respond to questions, particularly those of the hon. Member for South-East Cambridgeshire.

The hon. Gentleman understandably and rightly said that the provision was for a limited number of species, one of which is not currently to be found in England, and in essence asked whether the provision was really necessary as a conservation measure. The three species listed in proposed new schedule ZA1 are the subject of continuing reintroduction programmes, and it is increasingly likely that more breeding pairs will become resident in England and Wales. Although the white-tailed eagle does not yet occur in England or Wales, it is expected to increase its range in the future. That is why we included it. I am sure we all hope that that programme is successful.

The hon. Gentleman also asked whether species could be added to the schedule. I shall turn to that subject when I discuss amendment No. 109. To clarify matters, the proposed new schedule can be varied by secondary legislation at any time, but any proposal to do so would be subject to full public consultation and risk assessment. The Committee should understand that the provisions of clause 46 are very much to do with birds that reuse their nests year after year.

The hon. Gentleman then asked whether the provision for the detection of nests would be applied to ground-nesting birds that returned to a nesting area but not to a specific nest. The provision has been worded carefully to ensure that it applies only to species that reuse their nests year after year. Destruction of their nests can endanger the birds’ breeding success. It is not envisaged that the measure will apply to species that return to the same nesting area and build new nests, as the destruction of their old nest would not deter them from their breeding activity. I will return to that because it is an important issue that is addressed in amendment No. 109, tabled by the hon. Member for South-East Cornwall, which received the support of my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith).

Amendment No. 119 would add a requirement of intent to the offence of taking, damaging or destroying a nest protected on a year-round basis. It is to be inserted into the 1981 Act. The amendment to the 1981 Act introduced by clause 46 sits in an existing section that already requires intent for an offence to be committed. It is therefore unnecessary specifically to include the word “intentionally” in respect of the new offence of taking, damaging or destroying the nest of a species whose nests are protected on a year-round basis, because it is already included and would mean unnecessary duplication.

I understand that the intention behind amendment No. 120 is to protect the nests of the species in proposed new schedule ZA1 while they are being used on a yearly basis and should they be abandoned for a further three years. The species listed in the schedule are so vulnerable that their nests should be protected during the period after the birds leave the nest until their return during the next breeding season. As it stands, the Bill protects their nests in perpetuity even if they fail to return to their nests the following year.

We regard that as essential because birds can return after an absence of some years. The period of absence can vary between species. I asked my officials to let me know the lifespan of the three species, because I thought that that would be helpful. Certainly, it was when I was thinking about the issue. The RSPB told us that the lifespan of the golden eagle is 32 years. According to the Forestry Commission, the lifespan of the osprey is 20 to 25 years. It gave us a similar figure for the white-tailed eagle.

We also believe that successive generations may return to reuse nests, so it is difficult for us to know when we can safely say that a nest will no longer be reused by that species. Given that we have a licensing process, I ask that we allow the nest to remain in perpetuity so that we can extend the protection to those rare birds in England and Wales. Not a great number of nests will be protected in that way. As I said, if any nests pose a danger to public health and safety—if, for example, they are sited in an unstable tree or building, are an impediment to lawful activities such as crop production or cause serious damage to timber—there is a process of applying for a licence to have that small number of nests removed or moved. On balance, the extra protection given to those magnificent species will be well worth the small additional constraint on human activities.

Amendment No. 143 introduces the definition of “nest” to the protection afforded to the three species. Concerns has been expressed that the provision to protect nests on a year-round basis could have serious implications for land managers if “nest” is interpreted widely to include nesting sites. I said that I do not intend to interpret it in that way, especially if we were to include ground-nesting birds, because I have sympathy with that concern. We have carefully worded the clause so that it applies to species that return to a specific nest year after year rather than to a nesting area in which they build a new nest each year. I give you, Mrs. Anderson, and the Committee an assurance that species will not be added to the schedule unless they reuse specific nests.

There may also be unintended consequences in attempting to define the word nest. For example, to encourage rare birds to breed, conservation workers sometimes construct a framework that birds make use of when building their nest. Most famously, in the constituency of my hon. Friend the Member for Workington (Tony Cunningham), the Forestry Commission constructed a framework for ospreys. That has been used successfully. I am told by my hon. Friend that there are about 100,000 visitors to the site every year to view the ospreys. I am told by the Forestry Commission that that generates £2 million to the local economy. That is a startling figure. I recall the hon. Member for Hexham (Mr. Atkinson) telling us that the grouse moors were worth £3 million to his local economy, and to think that just those two birds in the forest in my hon. Friend’s constituency could generate £2 million is remarkable.

The proposed definition would therefore not necessarily protect such a structure, as it could be argued that it was not constructed by a bird. In addition, birds may build a nest but not produce any eggs, and it is not certain that the proposed definition would cover such a nest. I accept that in some ways I am being pedantic about the wording, and that the amendments were not tabled in order to raise such problems, but the natural, common use of the term “nest” is far preferable, as it avoids creating the uncertainty that would be created, however cleverly the definition it is drafted. The bird species listed in the schedule introduced by clause 46 are birds that return to the same nests year after year and use them for breeding. I hope that the hon. Member for South-East Cambridgeshire accepts that we have found a sensible way of addressing the matter.

The additional species proposed in amendment No. 109 may return to the same general nesting area each year, but they do not reuse the same nests. I fully accept that they are valuable birds. If my hon. Friend the Member for Sheffield, Hillsborough wants to see peregrine falcons, I recommend that she visits my constituency, where there are 12 breeding pairs on the Dorset coast, largely thanks to the Ministry of Defence’s excellent work on furthering the biodiversity on the Lulworth ranges. There is a little controversy in my constituency over the local pigeon races but one can see the peregrine falcons. If the falcons’ nests were removed or destroyed, it would not deter them from nesting in the same area the following year. The appropriate mechanism for protecting such sites is the SSSI procedure; if Natural England is of the opinion that an area which is important for rare birds is of special interest, it can designate it as a site of special scientific interest. That will bring with it all the legislative protection afforded to such sites, which the Government significantly improved in the 2000 legislation.

There has been widespread support from respondents to the consultation on the review of the Wildlife and Countryside Act 1981 for the listing of the three species in the schedule. However, a number of the respondents drawn from landowning and land management interests expressed concern about further species being added without further consultation. We have made it clear—I have made it clear today—that we would consult further if other species were to be added to the schedule. I hope that on the basis of what I have said the amendment will be withdrawn.

Colin Breed (Liberal Democrat, South East Cornwall)

I am grateful to the Minister for that response. I knew that he and his team would have considered the matter very carefully. I think that he understands the concern that has been expressed in Committee. We are all on the same side, and I hope that he might, even at this stage, begin to examine ways in which certain protection could be given without some of the possible ramifications and unintended consequences. We do not get such opportunities often, and there is a good deal of feeling that we need to do whatever we can to try, within the balance of things generally, to provide that additional protection, notwithstanding the difficulty of drafting and implementing it. I am sure that the Minister will reflect before Report on whether there are means by which some protection can be given to those particular species.

James Paice (Conservative, South East Cambridgeshire)

I let the hon. Gentleman speak first because the lead amendment is in my name. I am genuinely grateful to the Minister because he has sought to address the concerns that I expressed and the points that I raised. I had missed—I am glad that he corrected me—the fact that “intentionally” was already in the legislation. Clearly, therefore, my lead amendment is not necessary. That that may not entirely satisfy the hon. Member for Sheffield, Hillsborough, who opposed my amendment, but never mind. I am glad of that clarification from the Minister. I am also grateful for his affirmation about adding birds only after consultation and only those that re-use a specific nest. That is sensible, and all legislation is about striking a balance. He is right, and I appreciate the assurances that he has given.

On the structure and definition of nests, if I had stopped for a moment I would have remembered that there are artificial osprey nests and perhaps even other nests for those species. I would have realised that in his pedantry the Minister was correct and I was unwittingly excluding them. I did not do that intentionally, but he is right. In some ways, I still believe that there should be a definition, even if my choice of words was not right, but I will go along with what he has said.

The Minister referred to peregrine falcons in answer to the amendment tabled by the hon. Member for South-East Cornwall, and the proposal about using sites of special scientific interest to protect general nesting areas is sensible. I do not know whether he will impose one somewhere in London—I read somewhere recently that the first peregrines have nested on a building in London—or how we would go about that. The question of whether that should done through listing in a schedule or through a SSSI would be a challenge for the Minister. However, if the hon. Member for Sheffield, Hillsborough cannot see the birds in Sheffield, she can see them in London.

I must confess that I have my reservations about the Minister’s comments on my amendment to introduce a time limit. He used the phrase “in perpetuity”. As I said, I am not wedded to the idea of three years; I just think that it is bad law to provide for something for ever and a day. I accept that there are licensing arrangements, and while there is only a tiny number of the birds, it is not an issue. However, we must be conscious of what might become an issue, considering both the species in question and any others that might be added.

I would have thought that there should be some time limit. As I said earlier, I discussed that with a senior official in the RSPB, who was happy with the amendment but thought that five years would be better, so perhaps the Minister could reconsider. Although he is right that most of the species live to a great age, most people would agree that if an individual bird or pair has not returned in a few years, it is highly unlikely to do so again, because it has probably died, even if that is prematurely. I therefore believe that a time limit should apply.

Overall, the Minister has responded helpfully, and I am grateful to him. Bearing in mind the fact that we have still to debate the issue that the hon. Member for Sheffield, Hillsborough touched on, I beg to ask leave to withdraw the amendment.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following:

New clause 7—Protection of wild birds, their nests and eggs—

‘(1)Amend the Wildlife and Countryside Act 1981 (c. 69) as follows.

(2)In section 1 (protection of wild birds, their nests and eggs), in subsection (1), after “intentionally” insert “or recklessly”.

(3)In section 3 (areas of special protection), in subsection (1)(a), after “intentionally”, insert “or recklessly”.’ .

Jim Knight (Labour, South Dorset)

The clause provides for a new offence under the Wildlife and Countryside Act 1981 of taking, damaging or destroying at any time during the year the nests of certain wild birds listed in a new schedule. As we have just discussed, the new schedule includes golden eagles, white-tailed eagles and osprey, all of which are listed in annex 1 of the birds directive and are subject to reintroduction or re-establishment programmes. Section 1(1) of the 1981 Act protects nests only when they are being built or in use, but certain endangered bird species return to their nests year after year, and the provision is aimed at supporting their long-term breeding success.

The majority of offences in part I of the 1981 Act require the person committing the offence to act intentionally. However, the suggestion that certain offences should be extended to include instances when they are committed recklessly has been around for many years. The hon. Member for South-East Cambridgeshire made an interesting point about recklessness. The Countryside and Rights of Way Act 2000 introduced additional offences by applying the term “recklessly” to the offences of disturbing schedule 1 birds and schedule 5 animals. More recently, the Nature Conservation (Scotland) Act 2004 applied the term to several offences across part 1 of the 1981 Act as it applies to Scotland.

The hon. Gentleman’s new clause would protect all birds against the offences of reckless killing, taking and injuring; protect all nests from reckless damage and destruction during the breeding season; and prevent all eggs from being recklessly taken or destroyed. It would further extend offences committed in respect of specified birds in areas of special protection.

It is important that in providing protection for vulnerable wildlife we do not place a disproportionate burden on legitimate activities such as farming, timber production, fishing and defence. Such activities can take advantage of the defence available if the action was the incidental result of a lawful operation and could not have reasonably been avoided. To introduce a new offence of recklessness would inevitably have repercussions on that defence. Such repercussions would need to be considered carefully, not least by me if I were to choose to accept the new clause, especially with regard to clause 53, which applies part 1 to the Crown. There would have to be a demonstrable conservation benefit before we followed such a route.

With that in mind, the recent consultation on part 1 of the 1981 Act recommended that offences of recklessness should be limited to providing increased protection for those species that are most vulnerable—birds listed on schedule 1, animals listed on schedule 5 and plants listed on schedule 8. That recommendation was supported by the vast majority of those who responded on the issue, although some concerns were raised regarding proportionality.

All of the above leads me, in a fit of generosity, to having a great deal of sympathy with the intention behind the new clause, but not with the new clause itself. As it stands, the protection that it proposes for birds would go further than the Government and the respondents to the public consultation consider appropriate. It also fails to offer any equivalent protection to vulnerable species of animals and plants.

In conclusion, although the new clause is not completely acceptable, it raises an important issue, which I undertake further to consider.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for introducing clause 46 and for responding in advance to my new clause. He will be aware that the new clause was tabled at the behest of the RSPB, as were some of the other amendments that we have debated today. No doubt it will take note of what he has said.

In some ways, the Minister made the case for the new clause by referring to the 1981 Act and the changes introduced by the Countryside and Rights of Way Act 2000. The fact is that some of the provisions in the 2000 Act are inconsistent in their application—they do not necessarily apply to all the more serious offences. The word “reckless” is variable in value, and, as the Minister said, he has already carried out a consultation. I hesitate to bring in Scottish issues, because one of the benefits of devolution, if we believe in it, is that we do not all have to do the same thing. If we all had to have the same legislation, one would have to question why we had devolution. Nevertheless, the principle stands.

The RSPB’s argument is that the Bill needs to go a little further, which is why the new clause is drafted as it is. The RSPB is concerned about people who use the argument that they did not intend to kill something when it is clear that they were not giving the issue sufficient thought or were reckless. It gives an example of a fish farmer who shot a grey heron but claimed that he thought that it was a wood pigeon—Specsavers could help him, I am sure—and other examples.

Clearly, that is an issue, but I understand the Minister’s concern at extending the provision too widely. I am grateful that he is sympathetic to the overall objective and I assume from that and from his comments about the result of the consultation that he will table appropriate amendments at a later stage in the passage of the Bill. The measure would need to apply to animals; the fact that the new clause did not was an oversight by me and the RSPB. I hope that the Minister will table amendments on Report. I do not know when we will reach Report. Quite often, the Government do not table amendments until Bills go to the other place. There is no question of my being proprietorial, but when an issue has been raised in this House, it is nice for the Government to resolve it in this House, rather than waiting until the Bill goes to the other place.

I am grateful for the Minister’s general comments. I did not move the new clause, so I cannot withdraw it, but I am happy to support the clause generally.

Clause 49 - Sale etc. of invasive non-native species

Colin Breed (Liberal Democrat, South East Cornwall)

I beg to move amendment No. 104, in clause 49, page 18, line 31, leave out from ‘is’ to end of line 32 and insert—

‘included in Part III of Schedule 9’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to take the following: New clause 1—Sale etc. of invasive non-native species (supplementary provisions)—

‘(1)Amend the Wildlife and Countryside Act 1981 (c. 69) as follows.

(2)In section 14(1)(b) (introduction of new species etc.), insert “or Part III” after “Part I”.

(3)In section 14(2) (introduction of new species etc.), insert “or Part III” after “Part II”.

(4)In section 22(5) (power to vary schedules), insert—

“(c)add any animals or plants to, or remove any animals or plants from, Part III of that Schedule.”

After Part II of Schedule 9 of the 1981 Act (animals and plants to which section 14 applies), insert—

“PART III POTENTIALLY INVASIVE OR DAMAGING ANIMALS AND PLANTS NOT NATIVE TO GREAT BRITAIN TO WHICH SECTION 14ZA APPLIES

Duck, RuddyOxyura jamaicensis Fern, WaterAzolla filiculoides Hogweed, GiantHeracleum mantegazzianum Knotweed, JapaneseFallopia japonica Parrot’s-featherMyriophyllum aquaticum Pennywort, FloatingHydrocotyle ranunculoides Stonecrop, Australian swampCrassula helmsii”.’.

New clause 2—Restoration order where offence under section 14 is committed—

‘After section 21 insert—

“21ARestoration order where offence under section 14 is committed

(1)In addition to the penalties in section 21(4), where the operation in respect of which a person is convicted of an offence under section 14 has destroyed or damaged any flora, fauna or physiographical feature, the court by which he is convicted, in addition to dealing with him in any way, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the habitat to its former condition as may be so specified.

(2)An order under this section made on conviction on indictment shall be treated for the purposes of sections 30 and 42(1) and (2) of the Criminal Appeal Act 1968 (effect of appeals on orders for the restitution of property) as an order for the restitution of property; and where by reason of the quashing by the Court of Appeal of a person’s conviction any such order does not take effect, and on appeal to the House of Lords the conviction is restored by that House, the House may make an order under this section which could be made on his conviction by the court which convicted him.

(3)In the case of an order under this section made by a magistrates’ court, the period specified in the order shall not begin to run—

(a)in any case until the expiration of the period for the time being prescribed by law for the giving of notice of appeal against a decision of a magistrates’ court;

(b)where notice of appeal is given within the period so prescribed, until determination of the appeal.

(4)At any time before an order under this section has been complied with or fully complied with, the court by which it was made may, on the application of whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.

(5)If, within the period specified in an order under this section, the person against whom it was made fails, without reasonable excuse, to comply with it, he shall be liable on summary conviction—

(a)to a fine not exceeding level 5 on the standard scale; and

(b)in the case of a continuing offence, to a further fine not exceeding £1000 for each day during which the offence continues after conviction.

(6)If, within the period specified in an order under this section, any operations specified in the order have not been carried out, the authorised body may enter the land and carry out those operations and recover from the person against whom the order was made any expenses reasonably incurred by them in doing so.”.’.

New clause 3—Control of invasive non-native species—

‘After section 14ZA insert—

“14ZAA Control of invasive non-native species

(1)Where the Secretary of State considers that a species listed in Schedule 9 is—

(a)present in the wild; and

(b)is an actual or potential threat to the conservation of flora or fauna; or

(c)is an actual or potential threat to social or economic well-being,

he must add it to Part III of Schedule 9.

(2)Within three months of a species being added to Part III of Schedule 9, the Secretary of State must nominate an appropriate body that within one year will produce an action plan that identifies how the species should be eradicated, controlled or contained in order to protect threatened flora, fauna, social or economic well-being.

(3)Within three months of the action plan being presented to the Secretary of State, he shall announce to Parliament how the action plan will be implemented.

(4)Pursuant to subsection (3) and in circumstances set out in subsection (5), any person authorised in writing by the Secretary of State may, at any reasonable time and (if required to do so) upon producing evidence that he is authorised, enter any land for the purpose of controlling, containing or eradicating a species listed on Part III of Schedule 9; but nothing in this subsection shall authorise any person to enter a dwelling.

(5)The circumstances are—

(a)that the Secretary of State is satisfied that the body nominated to implement an action plan to control or eradicate a species is unable to conclude, on reasonable terms, an agreement to access land in order for the control, containment or eradication to be effective;

(b)that the nominated body did enter into such an agreement as referred to in subsection (5)(a), but that the Secretary of State is satisfied that it has been breached in such a way that operations to control, contain or eradicate the invasive non-native species are rendered ineffective.

(6)A dispute about whether or not there has been a breach of the agreement for the purposes of subsection (5)(b) shall be referred to an arbitrator appointed by the Lord Chancellor.

(7)More than one person may be authorised for the time being under subsection (4) to enter any land.

(8)A person acting in the exercise of a power conferred by subsection (4) may—

(a)use a vehicle or a boat to enter the land;

(b)take a constable with him if he reasonably believes he is likely to be obstructed;

(c)take with him equipment or materials needed for the purpose for which he is exercising the power of entry.

(9)If in the exercise of a power conferred by subsection (4) a person enters land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.

(10)It is the duty of a relevant authority to compensate any person who has sustained damage as a result of—

(a)the exercise of a power conferred by subsection (4) by a person authorised to do so by that relevant authority, or

(b)the failure of a person so authorised to perform the duty imposed on him by subsection (9),

except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person’s entitlement to compensation under this subsection or as to its amount shall be referred to an arbitrator to be appointed, in default of agreement, by the Secretary of State.’.

Colin Breed (Liberal Democrat, South East Cornwall)

The clause relates to invasive non-native species. One of the joys of considering the Bill is that it has been quite an educational exercise. I for one have learned an awful lot about all sorts of things. We move on now to plants and birds, but mainly plants. I have to say that I am to gardening what Frank Spencer is to DIY. I tend to kill off most things in my garden—perhaps I ought to be set on non-native invasive species.

We must recognise that there are real concerns in this regard. This is an important clause, and one that could usefully be expanded, in the light of many of the concerns that have been expressed. I hesitate to make a pun and say that there is a growing problem, but there is. There is now greater access to remote areas of the planet. People can travel to all sorts of exotic places and bring back all sorts of things that they see and think would look nice next to the water feature in their garden. Indeed, there is now greater importation of foods and plant material generally. Of course, sometimes what is imported, or at least what is intended to be imported, is perfectly satisfactory, but other things can piggyback on it—plants, animals, spiders and the like. We therefore have to be careful.

I previously had responsibilities in respect of the Department for Environment, Food and Rural Affairs, and I say to the Minister that we still do not have the controls on our borders that we should have. The potential for non-native invasive species and other problems that can be imported needs to be more thoroughly considered. Anyone who has been to Australia, New Zealand or California will know how seriously those places take such things, and the penalties that can be exacted from someone if they accidentally take in something that the authorities in those places do not want to destroy their orange groves or their agricultural production. We need to take non-native invasive species seriously, and amendment No. 104 and new clauses 1 and 2 expand on that idea. They may look a little wordy—we worked quite hard with other people on them—but they are relatively simple.

New clause 1 contains another list of non-native species, some of which will be familiar, especially to those of us who live in the south-west. I do not know whether it grows throughout the country, but Japanese knotweed is a major problem in our part of the world. Some other species are not so well known, but I am assured that they could cause real problems for us in the country.

New clause 2 would add new provisions for use when an offence has been committed, and provide for a restoration order. Proposed new section 21A(1) says that

“where the operation in respect of which a person is convicted of an offence under section 14 has destroyed or damaged any flora, fauna or physiographical feature, the court by which he is convicted, in addition to dealing with him in any way, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the habitat to its former condition”.

If people have been convicted, they should be responsible for restoration. Much of that work has fallen on local authorities, or sometimes even on other landowners, and those who caused the problems have had no responsibility whatever. People who have been convicted of causing an offence should be made to restore the habitat to its former condition. The new clause sets out other provisions that would ensure that some restoration was undertaken.

Subsection (4) of the proposed new section states:

“At any time before an order under this section has been complied with or fully complied with, the court by which it was made may, on the application of whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.”

When damage has been extended over significantly large areas, it sometimes becomes unnecessary to discharge an order, and we must recognise the practicality of such action. None the less, there should be real penalties with which people may be expected to be charged if they are convicted of such offences.

New clause 3 covers the control of invasive non-native species. It sets out a framework whereby problems can be examined when they are discovered, to ensure that prompt and appropriate action is taken. Part of the problem is that we do not do anything until the situation has become so bad that it is almost impossible to act appropriately. We have tried to put down a framework under the new clauses so that the Secretary of State can identity an appropriate body to deal with a certain problem, produce action plans and specify time scales so that the species can be eradicated or controlled in some way, to provide protection to threatened flora or fauna—or, indeed, to social and economic well-being. People know that some non-native invasive species have had a massive economic effect on landowners or farmers.

The new clause would provide a power to enter land with a constable. Notwithstanding the powers granted to inspectors, to which we have referred earlier, we tried to draft proportionate and reasonable definitions of the circumstances in which someone could enter areas of land. Under proposed new subsection (8),

“A person acting in the exercise of a power conferred by subsection (4) may ... use a vehicle or a boat to enter the land ... take a constable with him if he reasonable believes he is likely to be obstructed”,

although that may not always be necessary.

Under proposed new subsection (9), if someone enters

“land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry”,

and not just wander off again. He must make proper attempts to ensure that the land is secure. If there are any problems while he is there and any damage is done, proper compensation should be secured.

These are reasonable powers; if we are giving people powers to enter land, perhaps accompanied by a constable, they should be proportionate and reasonable. That is why new clauses 1, 2 and 3 and amendment No. 104 enhance the proposal. If it is not exactly what the Minister and his Department would propose, perhaps they can take those as a template, look at clause 49 on invasive non-native species and the Bill as a whole, take a wider purview and perhaps table additional clauses that reflect the amendments. I shall be interested to hear what the Minister has to say.

Jim Knight (Labour, South Dorset)

I am grateful to the hon. Gentleman for introducing a discussion on this very important subject. He is right to say that we have recognised the significant threat posed by invasive non-native species. I am pleased that it was him who introduced the amendments, given that some of my hon. Friends regard members of his party as non-native invasive species in their constituencies, which we are all focused on the need to eradicate.

We acknowledge our obligations under the convention on biological diversity to prevent the introduction of, to control, and as far as possible to eradicate, as appropriate, species that threaten ecosystems, habitats or species, and under the Bern convention to develop national strategies and action plans. We have undertaken a recent consultation on the outcome of a review of non-native species policy across Great Britain, and proposals for legislation in England and Wales.

We consulted on a proposal similar to new clause 2 in our review of part 1 of the Wildlife and Countryside Act 1981—that a person convicted of an offence under section 14 might be required by order to carry out at their own expense restoration of any damage caused. Responses to the consultation generally supported the proposal, while emphasising the difficulties of quantifying damage and administering orders.

Similarly, the proposals in new clause 3 constitute a means of focusing on and driving action in relation to the control of invasive non-native species, but go further than those included in the Government’s review of part 1 of the Act, which suggested a power for the Secretary of State to take or require action to control, contain or eradicate species listed in schedule 9 and for associated powers of access. Responses to that were mixed; many favoured the idea but were concerned about the implications, including resource needs, and supported a power rather than a duty. It was also questioned whether action should be based on a sound and transparent risk assessment process.

In response to the consultation and the work we have done, my fellow Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Exeter (Mr. Bradshaw), announced in March the intention of establishing a programme board to oversee the implementation of non-native species policy across Government. The Department has allocated funds for the purpose and I expect the board to meet for the first time in the late summer. I hope that that is a sign to the hon. Gentleman that the Government want to take action.

I will consider the proposed amendments in the following context: I welcome the idea of using a sub-set of species in schedule 14 on which action should be focused, with appropriate powers for the Secretary of State to ensure that action is taken. Not all non-native species are invasive, and action is not always necessary or feasible; it must be appropriately targeted. Sometimes a tight geographical focus is necessary for control purposes. However, I am concerned about the approach proposed in the amendments; a comprehensive package of legislation and policy is the appropriate way forward. As I said, we consulted on some of the essential elements and received a large range of constructive responses. We must consider and develop those over the coming months.

The development of policy on non-native species depends for its effectiveness on securing full stakeholder engagement and support. In other contexts, we have been criticised for rushing to legislate before stakeholders have drawn breath. We heard that criticism articulated in respect of some of things to do with wildlife crime. I do not think that we should take action in this Bill, but we should ensure that we come forward with suggestions on how to act. I hope that the hon. Gentleman will regard that as a commitment to make progress, albeit at a later date, rather than simply an attempt to shelve this important subject.

Colin Breed (Liberal Democrat, South East Cornwall)

I am glad that we have provoked some additional debate and consideration of this increasingly important subject. As I said, because so many people are able to go to so many different places—in fact, the more exotic, the better—we are under threat from things that we do not even know about now. Our weak border controls might land us in another Japanese knotweed situation before we know it.

I am pleased that the Government are taking the problem seriously. I take it as a commitment, albeit one to make progress. They need to be committed. It may require separate legislation, and obviously they have considered it by putting it in the Bill. I recognise that each Bill cannot contain everything all the time, although I would have thought that the matter might have commanded a slightly higher priority in this legislation. However, I am content with what the Minister said.

I am sure that we shall return to the problem, although I hope that we do not because species such as Japanese knotweed are dangerously invasive, and potentially economically damaging. If we are still at the progress stage and are bombarded with a serious problem, people are going to ask why. I hope that the progress is speedy and that the commitment is firm. On that basis, I beg to ask leave to withdraw the amendment.

Schedule 5 - Enforcement powers in connection with wildlife

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 115, in schedule 5, page 54, line 24, at end insert—

‘(1A)A person may not be authorised under subsection (1) unless he holds such qualifications as the Secretary of State, or (as the case may be) the National Assembly for Wales, may prescribe.’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 116, in schedule 5, page 54, line 32, at end insert—

‘(5)A wildlife inspector exercising powers under this or any enactment shall comply with any Code of Practice issued under sections 60 and 66 of the Police and Criminal Evidence Act 1984.’.

No. 117, in schedule 5, page 54, line 34, after ‘inspector’, insert—

‘who has reasonable grounds to suspect that a Group 1 offence has been or is being committed’.

No. 118, in schedule 5, page 55, line 41, after ‘inspector’, insert—

‘who has reasonable grounds to suspect that a Group 2 offence has been or is being committed’.

James Paice (Conservative, South East Cambridgeshire)

The debate has been presaged by earlier debates. Amendment No. 115 would introduce wording about qualifications again, and amendments Nos. 117 and 118 would require the inspector to have reasonable grounds to enter and inspect any premises. The argument that I made earlier remains, because schedule 5 involves huge change to the Wildlife and Countryside Act 1981 as it applies to wildlife inspectors, all the different offences, the examination of specimens, the taking of samples, the powers of constables and the powers of wildlife inspectors, as extended to other Acts. It is a massive schedule, which will change a lot. I accept the Minister’s comments about my earlier point on qualifications, when he said that it could be open to legal challenge if an inspector was not appropriately qualified. Nevertheless, there is an important point at stake—namely, that someone needs to have confidence that the inspector knows what he is doing. The Minister made the same argument as the hon. Member for Bridgend, who spoke from her own experience, which is that the qualification is effectively a combination of experience, knowledge and background.

Despite having been an Education Minister, I certainly do not believe that a piece of paper automatically proves that someone is qualified. Background, knowledge and experience are just as, if not more, valuable. My interpretation of the word “qualification” would not be so narrow as to mean a particular piece of paper—a certificate or whatever—but would refer to the broader context of the word. It would not refer to someone who did not know very much about the subject.

As for the “reasonable grounds” amendments—that is, amendments Nos. 117 and 118—my arguments stand. In the schedule, under the group 1 offences in proposed new section 18B and the group 2 offences under proposed new section 18D, the inspector cannot enter and inspect premises unless he has a reasonable suspicion that a crime is being or has been committed. It clearly states that a purpose of entering is to ascertain

“whether a Group 1 offence is being or has been committed”.

That takes us back to fishing expeditions, to which the Minister referred. If we are to prevent fishing expeditions, something needs to be included to ensure that justification is necessary before people use the powers. I look forward to the Minister’s reflections on that, alongside the reflections that he promised earlier.

Amendment No. 116 relates to the Police and Criminal Evidence Act 1984, which we have discussed. The Minister promised to write to the Committee regarding the role of the inspectors as far as pesticides are concerned. Obviously, that is in a different context, but the same argument applies. The amendment would add the stipulation that

“A wildlife inspector exercising powers under this or any enactment shall comply with any Code of Practice issued under sections 60 and 66 of the Police and Criminal Evidence Act 1984.”

That is a perfectly reasonable position to adopt. We are talking about evidence, including all sorts of things like the collection and examination of specimens and taking samples. These are clearly issues about evidence that may be used in a criminal prosecution. I do not understand how those functions can be carried out other than in the context of PACE.

I listened with interest to the experiences of the hon. Member for Bridgend, who said that when she was wearing one hat she would sometimes use PACE, but that when she was wearing another she would not. She would momentarily stop and change hats and say, “Now I’ll start using PACE.” That is a recipe for confusion, particularly among people who are to be inspected or investigated under the Bill. It would be clearer if, up front, everything was done under the auspices of PACE. If the Minister decides that the best way to deal with the problem—as well as the problem of the other aspect of the involvement of PACE—is to address it in correspondence, I shall be content. However, there is a case to be answered as to how an inspector can operate and gather evidence that may be used in a criminal prosecution, and how he can ensure that it is not disallowed in that prosecution, other than by following a code of practice under PACE.

All four amendments are appropriate. They are, to a degree, a rerun of previous amendments, but I look forward to the Minister’s response.

Jim Knight (Labour, South Dorset)

I will do the best I can to help the hon. Gentleman. If I fail, we will go down the other route of correspondence, but I will do what I can now to satisfy him.

Amendments Nos. 115 to 118 would amend schedule 5, which enhances enforcement powers in relation to wildlife. The amendments attempt to restrict unnecessarily the appointment and operation of wildlife inspectors. Amendment No. 115 would insert a new subsection to restrict who can be authorised by the Secretary of State as a wildlife inspector to those who hold such qualifications as the Secretary of State may prescribe.

All wildlife inspectors receive appropriate training to ensure that they can carry out their duties in a professional and effective manner. It may help the Committee to know that the formal training for wildlife inspectors includes enforcement of the Police and Criminal Evidence Act 1984, the wildlife incident investigation scheme, and the licensing of piscivorous birds, European protected species, badgers, non-piscivorous birds, and other mammals such as rabbits and deer. All licensing training includes study of the biology and behaviour of species, of legislation relating to species, and of licensing procedures according to the agreed working instructions. As part of their continued professional development, all wildlife inspectors have the opportunity to attend other training courses within DEFRA and externally.

Wildlife inspectors might not have formal qualifications on paper, but DEFRA does everything it can to ensure that their work is of the high quality required of them in order to sustain their good reputation. The amendment would do nothing to increase the competence of wildlife inspectors beyond that which I have described, and I respectfully request that it be withdrawn.

Amendment No. 116 would introduce a new subsection requiring wildlife inspectors to comply with the codes of practice issued under PACE. If there is a legal obligation for them to have regard to the codes under PACE, they will, of course, do so, but they do not conduct criminal investigations and the codes do not apply. The amendment would add nothing to their obligations under PACE.

In an attempt to be helpful and to add a little more clarity—or complexity, depending on how one views it—I shall briefly answer three questions. Do inspectors comply with the codes? Where the role of a wildlife inspector relates to the investigation of offences, and section 67(9) of PACE applies—I am sure that we are all familiar with that—he or she will comply with the codes of practice.

Is failure to comply with the codes of practice an offence? No, under section 67(10)(b) of PACE a failure on the part of

“any person other than a police officer who is charged with the duty of investigating offences or charging offenders to have regard to any relevant provision of ... a code in the discharge of that duty, shall not of itself render him liable to any criminal or civil proceedings.”

What training will wildlife inspectors receive on PACE? As I have said, they will receive training to ensure that they are familiar with its requirements and the codes of practices.

James Paice (Conservative, South East Cambridgeshire)

I am still genuinely puzzled. According to the schedule, inspectors will carry out investigations that, although not criminal investigations, may be part of prosecutions. They will examine specimens, take samples and so on, and will, at least, be expected to give evidence on that, and it is highly likely that they will be expected to produce the specimens or samples. It is unclear whether, if they have not been collected and gathered under PACE, there might not be at least an excuse for legal challenge by the defendant or his lawyers or, at worst, that the evidence might be non-admissible because it has not been gathered under PACE. That is my confusion, and I hope that the Minister can clear it up.

Jim Knight (Labour, South Dorset)

I cannot promise to do so. However, if it helps, section 67(9) of PACE requires that persons other than police officers who are charged with the duty of investigating offences or charging offenders shall, in the discharge of that duty, have regard to any relevant provision of a code. Therefore, if they are investigating offences or charging offenders, they must have due regard to the code. There might be implications if they are accompanying a constable at the constable’s invitation when entering premises. It is important for the Committee to recognise that inspectors undertake activities that are not related to offences, in which cases the code does not apply. That is where the confusion might lie for any or all of us, and that is about as far as I can go in attempting to clarify things for the hon. Gentleman. The letter that I write to the Committee to explain the difference between the functions of an inspector and those of a constable might help to clarify the issue as well.

Amendments Nos. 117 and 118 both introduce a requirement for a wildlife inspector to have reasonable grounds to suspect an offence before exercising powers to enter and inspect premises, and as they are similar I shall deal with them together. Wildlife inspectors have never needed reasonable suspicion of an offence before exercising their enforcement provisions under the 1981 Act. Enhanced powers for authorised wildlife inspectors are available for a number of purposes, including ensuring that licence conditions are being complied with and verifying statements that are made in the context of licence applications. Those are some of the activities that are referred to that are not part of investigating offences.

The circumstances of those inspections differ from those in which an offence is suspected. Such compliance visits ensure the integrity and enhance the credibility of the licensing system, and there is no requirement for inspectors to have reasonable suspicion to enter land in that regard. That is consistent with the wording of the 1981 Act, which is working well, and we see no reason to change it. I therefore ask that the amendment be withdrawn.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for at least some of his responses. For my benefit, if not for that of other Committee members, he still needs to clarify the points that we have raised concerning PACE. I shall not rehearse them again. On qualifications, I hear the Minister’s entreaty to believe that only the very best people will be taken, and I hope that he is right; that is a minor issue. I am less persuaded on the issue of reasonable grounds. On reflection, I understand his point that one should not have to have reasonable suspicion simply to go and verify a statement or, as he said, to check on licence conditions. However, if one is ascertaining whether a group 1 or group 2 offence is being or has been committed, under proposed new section 18B(1)(a), then it must be appropriate to have reasonable grounds for suspicion.

There is no point in pursuing the amendment, because I accept that it is defective in that it refers to all the non-investigative activities. However, I hope that the Minister will be sympathetic to the point that I am trying to make. To use his expression, the provisions for ascertaining whether an offence is being or has been committed should contain some constraint to prevent fishing expeditions.

Jim Knightindicated assent.

James Paice (Conservative, South East Cambridgeshire)

The Minister is nodding. I shall take that to mean that he understands the point that I am making and will reflect on it, as he undertook to do earlier when we did the same thing. For the record, he has accepted that that is the case, and so I beg to ask leave to withdraw the amendment.

Jim Knight (Labour, South Dorset)

I beg to move amendment No. 147, in page 55, leave out lines 12 and 13.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following:

Government amendment No. 140, in page 57, line 19, at end insert—

‘()After subsection (2) insert—

“(2A)A constable may, for the purpose of assisting him in exercising the powers conferred by subsection (1)(b) and (d) when he has entered any land under subsection (2), take with him—

(a)any other person, and

(b)any equipment or materials.”.’.

Government amendments Nos. 141, 148 and 149.

Jim Knight (Labour, South Dorset)

I must begin by apologising to the Committee, because there appears to be a printing error on the amendment paper. In proposed new subsection (2A) in amendment No. 140, the word “land” should be “premises”. I apologise for that oversight, which came to my attention during this afternoon’s sitting. I hope that the Committee understands that.

James Paice (Conservative, South East Cambridgeshire)

On a point of order, Mrs. Anderson. Can you clarify the legitimacy of the issue? I am not picking holes in the Minister’s point, but we are effectively dealing with a manuscript amendment, because it is substantively different. I am not clear whether the Committee could accept the Minister’s amendment, given that he has indicated quite a significant change to that we were advised on.

Janet Anderson (Labour, Rossendale and Darwen)

I am allowing the Minister to move the amendment in the amended form, and I hope that the Committee will agree with that.

Jim Knight (Labour, South Dorset)

Thank you, Mrs. Anderson.

Amendments Nos. 140 and 141 relate to the powers of constables in the enforcement provisions in schedule 5. Amendments Nos. 147 to 149 relate to the definition of premises in schedules 5 and 11.

As amendments Nos. 140 and 141 deal with the same issue, I will address them together. The new wording will put in place clear safeguards for access to dwellings, to close a potential loophole that has been identified following the publication of the Bill. Under the amendment, constables acting under warrant will be able to take accompanying people with them only when authorised by the warrant. It will ensure judicial oversight where a constable may be entering dwellings in order to investigate offences under the 1981 Act, to ensure a robust enforcement of the legislation without jeopardising the rights of individuals.

To turn to amendments Nos. 147 to 149, a drafting oversight has meant that the Bill would put the full definition of the word “premises” in a potentially confusing place in the 1981 Act: in the enforcement provisions, rather than in the interpretation section of part 1. When the Bill was drafted, it was not appreciated that the new definition of premises would also have an effect on section 6(3) of the Act, which contains offences to do with showing live wild birds at competitions. We believe that the proposed definition should apply to that section. We do not believe that that would change the extent of section 6(3). Therefore, the drafting should be amended to avoid any confusion. The amendment removes the references to the definition of premises and inserts a full definition into the interpretation section of part 1, namely section 27. I am sure that that is clear to the Committee, and that the amendment will be agreed to.

John Mann (Labour, Bassetlaw)

I beg to move amendment No. 145, in schedule 5, page 60, line 22, at end add—

POWERS OF CONSTABLES EXTENDED TO OTHER WILDLIFE LEGISLATION (1) Section 19(3) of the Wildlife and Countryside Act 1981 (c. 69) applies for the purposes of the provisions specified in this paragraph as if the reference to reasonable grounds for suspecting that an offence under Part 1 of the 1981 Act has been committed were a reference to reasonable grounds for suspecting that an offence under the specified provisions has been, is being or is about to be committed. (2)The provisions specified in this paragraph are— (a)Part 3 of this Act, (b)Part 1 of the Wildlife and Countryside Act 1981 (c. 69),

(1) Section 19(3) of the Wildlife and Countryside Act 1981 (c. 69) applies for the purposes of the provisions specified in this paragraph as if the reference to reasonable grounds for suspecting that an offence under Part 1 of the 1981 Act has been committed were a reference to reasonable grounds for suspecting that an offence under the specified provisions has been, is being or is about to be committed.

(2)The provisions specified in this paragraph are—

(a)Part 3 of this Act,

(c)the Protection of Badgers Act 1992 (c. 51), and

(d)such other provisions as the Secretary of State may specify by order.

(3)Orders made by the Secretary of State under sub-paragraph (2)(d) are subject to annulment in pursuance of a resolution of either House of Parliament.

(4)The Secretary of State may not make an order under sub-paragraph (2)(d) unless he is satisfied that it is necessary or expedient to do so in the interests of protecting wild birds or wild animals.’.

I do not intend to delay the Committee for too long, but I present for its edification and that of the Minister what I call the bird and bat amendment. Members will be aware that my constituents are keen on birds and bats, and particularly unkeen when developers uproot trees and bushes in which birds and bats may be nesting. Some developers suggest, always informally and off the record, that the best way to deal with things such as trees is to get them chopped down quickly before anyone says that they should not be chopped down and before a preservation order can be put on them. If a developer is witnessed and caught chopping down trees in which bats and birds are nesting, at some stage a wildlife crime officer from the police might attempt to prosecute the developer.

Of course a developer who chooses so to act knowingly may not inform the local residents of his intention to chop down the trees. In constituencies such as mine, one day a group of trees and bushes will be standing there, with birds nesting and bats flying around in the dusk, much to the edification of my constituents, but the next day said trees and bushes have been uprooted, chopped down and burnt, and the wildlife has disappeared.

What should one do if one suspects that a developer is about to act in such a way? Dialling 999 and suggesting to the police that they should appear in order to witness a crime against bats and birds that has not been committed is unlikely to get a positive response. However, if the bats are roosting in a barn, things are rather easier. Because the barn is covered by various planning Acts, one can inform the planning enforcement officer about the bats, and if there is a fear that the barn is to be demolished, the planning enforcement officer can act.

Therefore, there is a slight imbalance in the law. It has been raised quite vocally by a large number of my constituents, who have been upset by the actions of developers and others who have removed trees in which there have been bats and nesting birds. They have found that there is no remedy in law. I have no idea whether the Minister thinks that the amendment will precisely address the point, but it might. I would therefore be interested to hear his view on that and whether he could suggest an alternative remedy to deal with a major loophole about which my constituents implore him to do something.

David Chaytor (Labour, Bury North)

I support the comments of my hon. Friend who has forcefully described the importance of speed in certain instances of wildlife crime. I endorse his remarks. The amendment provides a minor, but significant improvement to the powers of the police. I should also like to identify one or two anomalies to highlight the importance of the amendment.

The powers given to wildlife inspectors, as described in schedule 5 and clause 44, are greater than the extended powers that we are proposing for constables.

Existing powers enable constables to enter land if they have reasonable suspicion that an offence has been, or is being, committed. However, the key point is that in many circumstances—my hon. Friend has described a small number of them—wildlife crime could involve the theft of eggs from the nests of protected species, badger baiting or many other examples of offences that might not yet have been committed or be in the process of being committed, but there could be overwhelming evidence to make a constable suspect that they were about to be committed. That seems a powerful argument for extending constables’ powers to enter land in those circumstances.

My second point does not pre-empt the debate on part 6 of the Bill about motorised vehicles on rural roads. However, as things stand, in cases of offences committed in remote rural areas, constables with motorised vehicles might have access to tracks and bridal paths that would enable them to collect evidence that an offence was about to be committed. They might be observing people acting suspiciously, who might have all the tools of the trade for stealing rare eggs, badger baiting or whatever else. Now, the constables would not be able to enter the land adjacent to such tracks and carry out the necessary arrest or conduct their inquiries.

I understand that there may be some resistance to the amendment on the part of those who think it an infringement of the individual landowner’s liberty. Again, I refer back to the earlier debate, in which the Opposition said from time to time that the powers given were too intensive, and that that step represented an infringement of liberty and was tilting the balance a little too far.

It seems to me that many landowners would welcome the powers. Not all landowners are in favour of the kind of offence that we are talking about. We should be clear that this is not an extension of powers that would inevitably or automatically impact on the freedoms, liberties or privacy of landowners—indeed, precisely the opposite. The powers would in many cases be supported by landowners, who find all kinds of wildlife offences taking place on their land utterly against their will.

We are considering a reasonable and comparatively minor extension of constables’ powers. It would not extend their powers in any way beyond those that wildlife inspectors have at the moment, and many landowners would welcome it because it would increase the ability to conduct inquiries or arrest people committing wildlife offences. I support the amendment and hope that the Minister will consider carefully what has been said.

Madeleine Moon (Labour, Bridgend)

I, too, support the amendment. It seems nonsense that prior to an offence being committed, police can enter land only with the landowner’s permission, even if the crime may be well under way. The police do not have the opportunity to move in until after the act. It must be remembered that wildlife crime can take place on private land far away from a road. One should not have to stand on a hillside far away with a set of binoculars. It is ridiculous to suggest that we position officers so that they can check what is happening from far away, or that we will have to find the landowner before the officers can get on to the land if they suspect that an offence is being committed.

The destruction of trees has been a particular problem in my constituency and that of my hon. Friend the Member for Bury, North (Mr. Chaytor). Before a planning application is submitted, trees are moved, ponds are filled in and events occur that damage the habitat, thereby endangering and even killing certain species, and nothing can be done because the police officer cannot get hold of the landowner or gain access to the land until the offence has been committed.

I hope that the Minister will listen to the debate on the amendment and take note of it.

Jim Knight (Labour, South Dorset)

This is an interesting bat and bird amendment, which my hon. Friend the Member for Bassetlaw (John Mann) has tabled. It would give the Secretary of State an order-making power to extend the enforcement provisions in section 19(3) of the Wildlife and Countryside Act 1981 to provisions in any Act that aims to protect wild birds or animals.

The amendment would also have the immediate effect of extending the time within which the powers available to the police under the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 can be used. Under the 1981 Act, for example, powers can be used only where it is suspected that a crime has been committed. As we have heard, the amendment would extend that provision to situations in which it is suspected that an offence is being, or is about to be, committed. It would also introduce new powers to cover the new pesticides offence in part 3.

The amendment proposes quite wide-ranging powers that would, in effect, allow access under warrant to all land on which an offence might be committed. We would require evidence to show what problem the new powers would address, the justification for such powers, what the consequences would be if they were not granted, and what other remedies, if any, might be available, and the number of offences each year that would be covered by the change. We would also need to assess the impact on police resources.

We do not believe that there is significant evidence to support the change proposed by the amendment. It would, for example, be difficult to prove with any certainty whether a wildlife offence was about to be committed. It would also be difficult to ascertain with any certainty the impact that the proposal would have on police resources in terms of deterring possible future offences.

David Chaytor (Labour, Bury North)

Surely the point is that under the Wildlife and Countryside Act 1981 there is a need to prove reasonable cause for suspicion. That is the key phrase, because it is highly unlikely that any police force would use any new powers in a cavalier way. I would have thought that pressures on the police to target their resources are such that they will use them only if there is reasonable cause for suspicion. Surely that is the necessary constraint that should put the Minister’s mind at rest.

Jim Knight (Labour, South Dorset)

I will return to that point at the end of my remarks, because there remain other issues worthy of consideration. There are also human rights issues, which I might need to consider. There is also a real need to ensure consistency of enforcement powers across legislation.

To some extent, there are alternative remedies. We are dedicated to the effective enforcement of wildlife legislation, as we have been saying today. Nevertheless, there is a real need to focus resources sensibly. Appropriate offences are listed in the 1981 Act, with appropriate penalties per offence, including a custodial sentence that we hope will act as a deterrent to those considering committing a crime. Where offences have been committed, we will pursue prosecutions with vigour. The amendments to schedule 6 will assist effective investigation and enforcement.

Individuals must apply for a licence to move certain European protected species. That would cover, for example, moving bats from a disused barn that is about to converted into a dwelling.

Tree preservation orders may be applied to trees that have an amenity value. Wildlife habitat may be taken into account when designating an order, which can be issued at very short notice. The relevant inspectors already have the necessary powers to gain access to land to assess any application, so if, for example, my hon. Friend the Member for Bassetlaw has constituents who are concerned about bats in trees, and if they suspect that an offence might be committed against bats in a tree, they have the power to use a tree preservation order to protect those bats. Similarly, all hedgerows more than 20 m in length that are not part of a garden are also already protected. Anyone proposing to remove a hedgerow must apply to the local authority for permission to do so.

To some extent, therefore, we have other remedies for some of the important problems raised by my hon. Friends. However, the amendment raises timing issues about wildlife offences, as my hon. Friend the. Member for Bury, North said, such as what powers the police should have to enter land on which an offence has been or is likely to be committed. Those are difficult issues, and they call for a judgment to be made about the protection of wildlife on the one hand, and landowners’ rights on the other. I am not in a position right now to make a judgment about how that balance should be struck.

I have promised to give due consideration to the subject raised by the hon. Member for South-East Cambridgeshire, and I have also promised to take action on non-native invasive species for the hon. Member for South-East Cornwall, so it would seem churlish not to promise my hon. Friend the Member for Bassetlaw and my other hon. Friends that we will consider the matter with colleagues and return on Report or at a later stage to tell them whether we can take this important issue a little further. On that basis, I urge my hon. Friend to withdraw the amendment.

John Mann (Labour, Bassetlaw)

The Minister responds with his usual eloquence and charm, although that does not necessarily seduce the members of the Committee into automatically presuming that legislation will follow. I hear what he says, and I hope that he will put some proper consideration into the development issue, because a developer who actually puts in a planning application is not the developer who is likely to start disturbing or destroying wildlife habitat intentionally. In examples from my constituency over the past four years, it has been precisely the developer who is thinking of putting in a planning application, but realises that he or she may have a significant problem, who “accidentally” removes said trees before anyone is aware that the meadows or pasture lands that they have lived next to—in some cases for 60 or 70 years—are all going to disappear, to be followed by a planning application that often takes great pleasure in saying that the site is now far more suitable because of the loss of habitat. It seems that increased police powers would be of assistance when people suspect that such activity is about to take place. In that context, and looking forward to ministerial intervention, I beg to ask leave to withdraw the amendment.

Clause 55 - Notices and signs relating to SSSIs

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 130, in clause 55, page 21, line 7, at end insert—

‘after consultation with every occupier of that land’.

The amendment is another one that does not require much explanation. It is straightforward and simple. Needless to say, we support clause 54, which we just ordered to stand part of the Bill, and which changes some of the legislation on the protection of SSSIs. As an aside, I note that the Government have introduced the use of the word “recklessly” in clause 54. That was part of the genesis of the earlier amendment, and the Minister should bear that in mind in his further reflections.

Clause 55, which we are debating, adds to clause 54 provisions covering notices and signs. It simply says that Natural England, the new organisation, will be able to put up signs. I am suggesting in the amendment that Natural England should consult the people who own or occupy the land before putting up those signs. I am not saying that it should not be allowed to put up the signs, or that the occupiers should have a veto, but it is reasonable that the occupiers should always be consulted.

I have tried to touch on the reason for that in other debates. It is straightforward. There is a lot of apprehension in the countryside about what Natural England will be like and about what powers it will have. People’s experience of the current arrangements is not always good. Occupiers of land can be sensitive to what is done on land in which they have an interest. If Natural England is to have good relationships with occupiers of land, it is essential that occupiers know what is being done. Even if it has the power to erect notices, I suggest that Natural England should always consult occupiers before erecting notices. It would help the credibility of the system if that were stipulated in the Bill.

I am sure that the Minister will say, “Of course Natural England will consult and talk to local people”—

Jim Knightindicated assent.

James Paice (Conservative, South East Cambridgeshire)

The Minister is nodding his head to confirm that, as I expected, I foresaw his response. Therefore, I suggest that there is no reason not to include such provision in the Bill because, as I said, what is in the Bill affects the credibility of, and how people perceive, the legislation. If it says in the Bill that something has to be done, people will feel slightly comforted. If the Government are going to consult anyway, as the Minister’s nodding suggests, I hope that he will agree to put words to that effect in the Bill, to ensure that people understand that they still have rights over their land and that Natural England are not riding roughshod over their interests. I am not suggesting that Natural England would do that, but we must accept that it is a possible perception. I am anxious to make sure that things operate smoothly.

Jim Knight (Labour, South Dorset)

I fully appreciate the intention of the amendment, but I am going to ask the Committee to resist it, for reasons that I hope to make clear. The power to erect notices and signs is for use where there is justified need because of Natural England’s responsibilities for sites of special scientific interest. We would, naturally, expect Natural England to liaise with owners and occupiers, as a matter of common courtesy, before using such powers. Its use is far more likely to be beneficial to the interests of owners and occupiers, and complementary to their efforts to manage the land for its special interests, than it is to have any detrimental effect on their interests. In almost every case, I imagine that once consulted, owners will be happy and everything will be fine.

I will give a key example. As we stated in the regulatory impact assessment, the provision will be particularly helpful in addressing problems such as third-party damage at sites of special scientific interest. Earlier this month, English Nature issued a press release stating that reported incidents of criminal activity on SSSIs had doubled in the last year, with more than 70 per cent. of incidents caused by persons other than the owners and occupiers. Unlawful off-road driving, which we shall discuss, and moor burning, for example, must be as much of a concern to the owners and occupiers of the land as it is to English Nature and will be to Natural England. Use of signs and notices, either at Natural England’s instigation or at the request of owners and occupiers, to warn and deter such people would benefit everyone.

In England, 55 per cent. of common land is SSSI land, and Committee members will know that this week we have introduced the draft Commons Bill in the other place, which will address issues in respect of common land. However, some commons have hundreds of registered commoners and a requirement to conduct a formal consultation process with each and every one of them, even to erect only one or two signs at the point of entry to the SSSI, would be a significant administrative exercise completely disproportionate to any likely impact on the interests of the commoners.

Until we have implemented the Commons Bill—assuming that it passes all its stages in Parliament—it will still take some time to clarify all the registration of common land. As things stand, it will be difficult to know if we even have been able to contact all the commoners.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I was going to raise the issue of common land anyway. I may have misheard the Minister, but did he say that an SSSI may consist of many hundreds of commons? I would dispute that. The land may be grazed by hundreds of commoners—[Interruption.] We might debate that. I cannot think of anything worse than having the whole of the English countryside covered with signs from English Nature—or Natural England. Will Natural England have to get permission under the Law of Property Acts to erect a sign on a common—because anyone else would have to do that—or will it have Crown immunity in this instance?

Jim Knight (Labour, South Dorset)

The hon. Gentleman raises a fascinating question, and I am aware from preparatory work that I have done for the Commons Bill how complicated the law is on commons. I hope and anticipate that the measures in the Bill apply to common land as they would to anywhere, so that we can deal with some of the problems relating to SSSIs, given that 3 per cent. of SSSIs are on common land in England and 8 per cent. in Wales. It is important that we are able to take this modest action to protect them.

I strongly urge that Natural England should be left to continue English Nature’s practice of informal liaison with owners and occupiers of SSSIs as part of their normal relationship. I am sure that Natural England will give careful consideration to any persuasive representations about location or other issues concerning any signage proposals. There are circumstances in which a statutory requirement to consult every one of the occupiers of land could work against the wish that I am sure all Committee members have to see such problems as unlawful off-road driving dealt with. In such cases, we would want to be able to display a sign quickly and efficiently without having to go through a costly exercise. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

James Paice (Conservative, South East Cambridgeshire)

I appreciate the Minister’s point. Indeed, my hon. Friend the Member for Hexham had made the point to me earlier, sotto voce, about the number of commoners who could be involved so I understand that. The key point that the Minister has put on record is that he would expect Natural England to consult wherever possible, and his statement will be held hostage for the future if that does not happen—but I am sure that it will, so I beg to ask leave to withdraw the amendment.