Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Pearson of Rannoch moved Amendment No. 15:

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

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

21 Mar 1996 : Column 1427

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

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

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

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

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

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

The Earl of Lindsay moved Amendment No. 17:

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

On Question, amendment agreed to.

21 Mar 1996 : Column 1428

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

Lord Pearson of Rannoch moved Amendment No. 18:

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

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

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

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

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

    "'marauding deer' means deer which are not being effectively controlled and are causing damage on land on which they are not normally established at the time of year in question".
I have somewhat more confidence in that definition than the definition produced at Committee stage, because it is the definition which appears in the Government's Notes on Clauses on the Bill. I believe that it is also the definition that my noble friend used in the Committee proceedings. Therefore, some of us think it important to have that on the face of the Bill in the definitions, and that Clause 4 should be brought back to where it was before and refer firmly to "marauding deer".

There is a feeling going around that the deer problem in the Highlands of Scotland is perhaps more urgent than it really is. I have had informal discussions with the Red Deer Commission since the Committee proceedings. I understand that at the moment the red deer population, where it is believed that most of the

21 Mar 1996 : Column 1429

problem has arisen, particularly with regard to the natural heritage in the Highlands of Scotland--the regeneration of the Caledonian Forest and so on--is steady. Based on the latest deer count in Caithness and Sutherland, the number is steady. In the east of Scotland, where most of the problem has arisen in the Angus glens--deer having moved east over the past few years, for reasons that nobody completely understands--it appears that over the past 12 months the voluntary control schemes, in collaboration with the deer management groups, have stabilised the numbers. In some areas in the east of Scotland the numbers are down. I gather that in West Invernesshire there has been a slight increase over the past six years in some areas, but that may be because sheep have been taken off the ground in question. Therefore, deer do better when sheep come off.

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

7.15 p.m.

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

I am fully confident that these powers must be exercised responsibly. As I indicated on Second Reading, I have listened carefully to comments made by noble Lords and have been prepared to make adjustments to the Bill in Committee to meet the concerns expressed. In particular, I have added the important rider in new subsection (1) of Section 6, that this power can be used only when no other power of the commission is adequate to deal with the situation. That

21 Mar 1996 : Column 1430

makes it crystal clear that this can only be an emergency power. I have also removed the original reference to "any land" to make certain that this power can be used only in locations where it is essential to take action in this way. If a draconian Secretary of State wants to ride roughshod over owners' rights then he will have to change the law. I remind my noble friend of the safeguards and guarantees in Section 6 of the 1959 Act. For instance, the owner, or person who has the right to take or kill deer on the land from which those deer come, must first be contacted by the commission and given the opportunity to solve the problem before the emergency powers in Section 6 of the 1959 Act can be triggered. There are two or three safeguards which involve efforts to contact owners, and so forth. The interests of the landowner are fully recognised.

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

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

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

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

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

21 Mar 1996 : Column 1431

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

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

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

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

Next Section Back to Table of Contents Lords Hansard Home Page