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Page 2, line 29, leave out ("persons or").
Page 2, line 29, leave out ("he thinks fit") and insert ("appear to him to represent the interests of persons concerned with the matters mentioned in subsection (3A)(a) above").
Page 2, leave out line 32.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 8:


Page 2, line 33, at end insert ("; and
(c) where names have been suggested by organisations representing the interests of deer managers, select the one third of the Commission referred to in subsection (3A) above from among those names.".").

2 Apr 1996 : Column 169

The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 4. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Baroness Serota): My Lords, in calling Amendment No. 9, as an amendment to Amendment No. 8, I point out to the House that "Line 2" should read "Line 3". There is a misprint in the Marshalled List.

Lord Pearson of Rannoch moved, as an amendment to Amendment No. 8, Amendment No. 9:


Line 3, leave out ("representing") and insert ("which appear to the Secretary of State to have as their principal purpose to represent").

The noble Lord said: My Lords, I am most grateful for what my noble friend had to say about his amendments and indeed about my Amendment No. 9. I think that what my noble friend said renders my amendment redundant. Before begging your Lordships' leave to withdraw it, I only have to express a certain amount of mild dismay that the noble Lord, Lord Mackie of Benshie, should have misunderstood the thrust of what I was saying. I confirm my understanding, which my noble friend the Minister confirmed, that the RSPB, which is an excellent body, will presumably be consulted under the natural heritage interest of the clause rather than under the deer management interest of the clause. I am most grateful to my noble friend for explaining the niceties of the legal drafting, in that when the word "represent" is used, we are talking about a primary aim. That was in fact the object of my particular amendment, so I beg your Lordships' leave to withdraw it.

Amendment No. 9, as an amendment to Amendment No. 8, by leave, withdrawn.

On Question, Amendment No. 8 agreed to.

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

The Earl of Lindsay moved Amendment No. 10:


Page 3, line 34, leave out from beginning to ("or") in line 35.

The noble Earl said: My Lords, I announced on Report that I would table at Third Reading amendments to Clause 4 to clarify further the exact circumstances in which the use of the emergency powers in Section 6 to control damage by deer would be used. This is in response to concerns expressed by noble Lords that the way Clause 4 was originally drafted seemed to make it possible to use the power in other than emergency circumstances.

The effect of my amendments will be to require the commission to be satisfied before using Section 6 powers that the damage in question being caused to natural heritage features on unenclosed land is due to the presence of a significantly higher deer density than is usual in all the circumstances. I have already clearly explained that the clause is designed for use in emergency circumstances only, and also added in Committee the rider that the power can be used by the commission only when no other power is adequate to deal with the situation. Nevertheless, I have thought it sensible in the circumstances to include a further

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clarification which will make it absolutely clear that the power can be used only when deer arrive in much greater numbers than is normally the case on the ground in question--in other words, they are "marauding".

For the most part, that will be obvious from the nature of the damage or danger being caused: deer are quite clearly not expected to be in a farmer's field of turnips, nor in a school playground, nor for that matter within an enclosure designed to protect some natural heritage feature. No specific qualification is needed in respect of these types of land. But deer can be an integral part of the land management pattern on unenclosed land where natural heritage features might be present. Hence the effect of my amendment will be to make it clear that the damage being caused should be an unexpected event by virtue of the arrival of a significantly higher density of deer than is usual.

As background, I should perhaps mention that the Section 6 powers were originally designed to allow the commission to authorise action to deal with damage to agricultural production when it was not possible, for whatever reason, for the occupier to take action himself on the land in question. Over the years, the power has also been adapted to allow action to be taken in this way in respect of the other forms of damage with which the Deer Commission is concerned, notably damage to woodland.

In 1982, in response to fears then about damage caused by deer which had colonised ground, the original stipulation that deer had to be "coming onto ground" to trigger the use of the power was deleted. The power has been used relatively frequently in the years since the time the commission was established and is, for example, the basis on which authorisations are currently given to shoot in the close season as part of the current voluntary control schemes being run by the commission.

The effect of the Bill, in particular the provisions for control agreements and for out-of-season authorisations to protect the natural heritage and unenclosed woodland will be to reduce considerably the need for the commission to use Section 6 powers. As a consequence, we have used the Bill to recast the various powers of the commission to ensure that they are tailored to the situation at hand and are mutually compatible.

Where special action is necessary the commission would normally look in the first instance to the occupier (or owner in certain cases) to take action themselves on their own land, either during the season or, under the powers in Section 33 of the 1959 Act. Where there are more longstanding or widespread problems, the commission would seek to use the powers available to it under Clause 5, that is to say control agreements, or in exceptional circumstances control schemes. In addition, the commission may turn to the powers to protect the natural heritage and unenclosed woodlands set out in Clause 9 of the Bill. Only in emergency situations where deer are causing unexpected serious damage or danger and no other course of action is adequate, could the last resort powers in Section 6 be invoked.

Section 6 powers are not designed as a catch-all to deal with all the kinds of damage wherever they occur. They are a last resort measure to deal with emergency

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situations when no other form of control is possible. Consequently if deer are an established and significant part of the land use pattern on the land in question, the damage being caused is unlikely to constitute an emergency. It may very well be serious and require effective action to be taken, but that is precisely what the control agreement and control scheme powers are all about. They contain in particular real safeguards for land managers which cannot be overridden without proper consideration.

It has been suggested that by singling out the natural heritage in this way, we are somehow discriminating against it as a land use worthy of protection compared with the other land uses protected by the Bill. That is not our intention; nor is it the effect of the amendment. All the amendment does is allow the terms of the power to operate in the case of the natural heritage as the power is intended to work; that is to say where deer are causing damage in such a way that emergency action deserves to be taken. Specific reference to the circumstances in which the natural heritage can be protected using these powers is needed, because the natural heritage can occur on any land, including land where deer are the primary land use, unlike the other features worthy of protection which are quite obviously land where deer are not the primary land use. I refer to agriculture and forestry.

Moreover, these amendments do not have the effect, as has been suggested by some, that the occupier or owner in question will be required to put up a fence to benefit from Section 6 protection. Where the commission is satisfied that a significantly higher density of deer are present on the land in question and are causing the damage, then Section 6 powers can be used to protect the natural heritage, just as they can for the other factors worthy of protection. I believe it important to retain the option of using emergency powers to protect the natural heritage in the last resort, wherever it occurs, and am confident that the amendments will achieve that effect.

As I stated at Report, we have not, on legal advice, incorporated the term "marauding" into the text of the Bill because of the real legal uncertainties associated with it, especially the definition of "range". The requirement that deer are present at a significantly higher density on the land in question than is usual is one that can be met by the relatively objective criteria of records of deer numbers and movements.

The phrase "all the circumstances" is designed to ensure that the commission takes into account factors such as seasonality and weather conditions as well as movement patterns in reaching its decision on this matter. I beg to move.


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