Natural Environment and Rural Communities Bill | ||||||||||
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Mr. Paice: 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: 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
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. Mr. Breed: Will the Minister give way? Mr. Paice: Will the Minister give way? Jim Knight: I give way to the hon. Member for South-East Cornwall. Mr. Breed: 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: 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. 4.30 pmMr. Paice: 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 Column Number: 190
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: 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. Mrs. Moon: 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: 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. Column Number: 191 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. Mr. Paice: 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: 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. Mr. Paice: 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
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: 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. Mr. Paice: 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:
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: 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. Column Number: 193 Mr. Paice: 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. Amendment, by leave, withdrawn. Mr. Paice: I beg to move amendment No. 66, in clause 44, page 16, line 19, leave out “a” and insert “an appropriately qualified”. The Chairman: 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—
4.45 pmMr. Paice: 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: Column Number: 194
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: 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
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. Column Number: 195 Mr. Paice: 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. Amendment, by leave, withdrawn. Clause 44 ordered to stand part of the Bill. Clause 45 ordered to stand part of the Bill. Clause 46 Protection for nests of certain birds which Mr. Paice: I beg to move amendment No. 119, in clause 46, page 17, line 3, at beginning insert ‘intentionally’. The Chairman: With this it will be convenient to discuss the following amendments: No. 120, in clause 46, page 17, line 4, at end insert—
No. 143, in clause 46, page 17, line 4, at end insert—
No. 109, in clause 46, page 17, line 11, at end insert—
Mr. Paice: 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
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
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. 5 pmLater 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
Amendment No. 143 seeks to define “nest” in a way that most people would consider to be perfectly reasonable, as
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. |
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