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Lord Glenarthur: I would like briefly to support my noble friend Lord Pearson on this not least because I really believe that there is a serious issue of clarity here, particularly following my noble friend Lord Lindsay's remarks in connection with Clause 23. It seems to me

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to be absolutely crucial that this definition of precisely what marauding entails is made totally clear. At the moment, I am by far from convinced that I even understand what will be the outcome of the amendments in their totality suggested by my noble friend. Therefore, I hope that he will go some way further to satisfy my concerns.

The Earl of Lindsay: The effects of Amendments Nos. 24 and 79 have been substantially explained by my noble friends Lord Pearson of Rannoch and Lord Glenarthur. I would repeat the definition that we have used of "marauding" both in Notes on Clauses and indeed by myself in earlier evidence: marauding deer are deer which are not being effectively controlled and which are on land on which they are not normally established. The need for clarity, if the term is used strategically or substantially in the Bill, called for by my noble friend Lord Glenarthur is one with which I agree, and it is the need for clarity which makes us cautious about the sort of definitions which are being suggested by my noble friend Lord Pearson.

On the difficulty about creating a legal definition of marauding deer, it is impossible to be certain about what constitutes the normal range on which deer are established, and therefore to have a clear legal prescription of where deer should and should not be. Because of my sympathy with the motives behind this amendment--it is not dissimilar to the welfare issue--I have spoken to the parliamentary draftsman. He points out that normal range to deer managers may be one thing, but that the normal range of a particular species of deer to woodland owners, crofters or farmers may be another thing, and it may be possible, if one was contesting the label "range", to produce biologists or other experts who come up with yet another definition of what should be the normal range of a wild animal. I have no quarrel with what the two noble Lords are trying to achieve in principle. My concern is that the term "normal range" is something which my experts, officials and parliamentary draftsman say is potentially terrifying because of the number of different ways in which it can be interpreted for the various different species of deer that we have in Scotland.

On the basis of the difficulty over the actual definition, I hope that my noble friend will withdraw his amendments, but it is something that we have spent a good deal of time looking into.

6.15 p.m.

Lord Pearson of Rannoch: I am grateful to my noble friend but I am not convinced that we have spent enough time looking into it. Before withdrawing the amendment, I wonder whether we may have his assurance that we can discuss this in some depth before we move to the next stage. All the powers which centre around Clause 4 come from this difficulty of the immediacy of Clause 4 and exactly how they are going to be used. If we cannot solve the problem by reaching an agreement on the meaning of the word "marauding",

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then there must be another way that we can define where we all want to be with this clause. Perhaps I may put that to my noble friend as a request.

The Earl of Lindsay: I am happy to discuss this with my noble friend before the next stage. I would also point out to him exactly where we are coming from. We are happy, away from the face of the Bill, to define "marauding deer" as those which are not being effectively controlled and are not normally resident in the area where they exist. There may be grounds for optimism for my noble friend that somehow we can agree on what is at the heart of this. It is a matter of whether we can put a safe definition of "marauding" into the Bill and know that it is secure from counter-definitions from others.

Perhaps I may also remind the Committee that the impact of the definition and how it is interpreted are vital. This is why the amendment which I am about to move specifies that all other options and powers available to the deer commission must be unavailable or inappropriate before it can turn to the marauding power. This will help by de facto defining the circumstances in which marauding deer will be classified as such, because if through discussion with the people who have a right to shoot deer wherever they are or if through control agreements or control schemes or through the deer management groups you can solve the problem that those deer are creating, then you do not have marauding deer. You only have marauding deer and can tackle them where no other power is available to the commission. I am happy to discuss this point with my noble friend prior to the next stage.

Lord Pearson of Rannoch: I am most grateful to my noble friend. I take particular encouragement from his agreement that a marauding deer cannot be one that is normally resident where it is supposed to be marauding! With that small satisfaction, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lady Saltoun of Abernethy moved Amendment No. 25:


Page 3, line 21, after first ("to") insert ("enclosed").

The noble Lady said: I beg leave to speak also to Amendment No. 69. If "woodland" is not enclosed by some fence or barrier designed to keep deer out, surely they cannot be considered to be "marauding" if they get into it! As the definition of "woodland" stands at present, which I shall return to in a later amendment, and in the absence of any definition of "marauding", which we have just spoken about, "woodland" can, as I see it, mean any land on which there are just a handful of trees in possibly a square kilometre of land. The normal range of red deer is frequently over just such land.

As I understand it from the submissions of various witnesses to the Select Committee, if one plants trees, or tries to regenerate them without deer fencing, one would need to reduce the deer population to between three and five deer or less per square kilometre (400 hectares). At that level, the letting of stalking for sport

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as a commercial activity, as we know it, would be impossible with consequent loss of income from rent and venison sales and loss of capital value.

The RSPB suggested in its submission that that would not be the case but, under questioning, it admitted that its stalkers were the owners of--I think it was the solum. In the red book it says the "soul", and it certainly cannot be the "sole". I think it means the solum. The RSPB's stalkers only stalked about 15 days a season, which is very little; took one beast per outing; only paid any expenses involved, and also admitted that it did not have to make the estate pay, thanks to outside funding.

I have a nightmare vision. If woodland does not have to be enclosed, SNH can come along waving a European Communities habitats directive from Brussels, and declare a large part of what is at present a sporting estate to be a special area of conservation, where the native forest is to be regenerated without the use of politically incorrect deer fencing. Then, when the deer eat or threaten to eat the seedlings on what has hitherto been their normal feeding ground, it can demand that the commission has them massacred. What is more, to add insult to injury, it keeps the carcasses. That would be pretty hard on the wretched owner, who is left with the wages to pay, no income and an unsaleable estate. That might suit some future government of an independent Scotland bent on nationalisation of all sporting estates, because compulsory purchase would then not cost them very much. But do the Government really want to put powers into this Bill which, as I see it, could be used in that way? I do not say that they would, but it is possible that they could. I beg to move.

The Earl of Lindsay: I am grateful to the noble Lady for explaining Amendment No. 25 to us and indeed for speaking to Amendment No. 69.

The existing provision at Section 6 of the 1959 Act does not specify that the woodland should be enclosed. One can easily anticipate a situation where a particular woodland or forest is not enclosed because deer were not a problem at that time. Later, deer leave their established range, or their range under pressure moves, and enter that woodland and could potentially cause serious damage. To specify that only enclosed woodlands merit protection would be to suggest that any woodland within possible striking range of deer populations, either now or at some stage in the future, should be expected to be fenced or else risk damage, regardless of whether or not deer are a problem at present. That would be an unreasonable burden to place on the proprietors of woodlands.

It has been suggested that the commission might authorise out of season shooting to protect the natural heritage or unenclosed woodland in a manner which does not take into account neighbouring land interests. As we have already discussed, the effect of the new balancing duty introduced by Clause 1 is to ensure that such matters are taken into account when relevant as the commission exercises its powers. Consequently, the commission will not be able to issue authorisations without taking into account any impact they might have on neighbouring interests or indeed in general on the interests of owners and occupiers.

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In any case, those with experience of the way the commission exercises its functions will know that the commission's role in respect of deer management groups has been very much to stress the voluntary principle in solving potential problems and to encourage co-operation between neighbouring owners. The sustainable management of deer throughout Scotland in the manner envisaged by the Bill will be possible only if the commission can demonstrate that it is carrying out its overall responsibilities in a balanced and reasonable manner.

Amendment No. 69 is designed to restrict out of season authorisations to enclosed woodland also. New Section 33A(5) of the Bill specifically aims to allow the commission to authorise shooting to prevent damage to unenclosed woodland. The important point behind this is that unenclosed woodland--especially if it is near or within the normal range of deer--is less likely to trigger Section 6--as amended by Clause 4 of the Bill--powers. The powers will be very strictly defined and with my Amendment No. 30 will be even more closely defined. The damage must be serious; the damage must also be continuing damage. It cannot be damage that has happened or is about to happen. The other powers and procedures available to the commission must be inadequate. They must have been either tried and failed or be inappropriate to the circumstances of the case. The most likely scenario with unenclosed woodland is that one has a build up of a problem which is then subject to the control agreement that at worst could be a control order. But there is a much smaller likelihood of marauding powers being triggered for the unenclosed woodland in a way which I believe the noble Lady so fears.


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