Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Jenkin of Roding: My Lords, at the beginning of the proceedings this afternoon my noble friend Lady Miller said that she would impose on herself a regime of silence. She felt that she had made her complaints about the way the Bill has been dealt with. I believe that my noble friend has done that with passion and conviction. At that stage, it was not necessary to add to the points she made.

However, this is the last debate we shall have on the Bill. I should like to put on the record my view that if the Government produce a Bill of this size, of which

9 Nov 1999 : Column 1279

pages and pages consist of government amendments introduced at Third Reading in the second House, and which even now still have to be amended--the noble Lord, Lord Whitty, has shown us that that is the case--by yet further government amendments from another place, the chances of the Government having got the Bill right must be absolutely nil. It is not possible to legislate properly in such a hasty manner or to expect legal advisers, draftsmen and officials to have been able to think through all the consequences of the pages of new amendments that have only just been tabled.

I beg Her Majesty's Government to consider, when drawing up legislation for the next Session of Parliament, that never again are the two Houses of Parliament faced with a piece of legislation like the one before us. The Bill is being rushed through on to the statute book in the sense that it was obviously produced long before it was ready. Whole areas of the Bill have not been properly drafted and, in many cases, may not even have been properly thought through. Both Houses of Parliament have been expected to take on the Bill and deal with it, receiving amendments, further amendments and even amendments to amendments, all of them government amendments. That is not the way in which Her Majesty's government should be carried on. I hope that Ministers will take my words to heart and try to do better.

Lord Clinton-Davis: My Lords, it is a little rich for noble Lords from the party which, when in government, amended legislation at a very late stage in the process, to advance that kind of argument. I agree that we have too much legislation, but that affects both sides and is not a singular offence. The noble Lord ought to recognise that.

Baroness Blatch: My Lords, it is important to counter the view taken by the noble Lord, Lord Clinton-Davis. The Bill before us is unprecedented because the amendments, of which now there are almost 1,000, have come from the Government, and have arrived very late in the day. Even at Lords Consideration of Commons Amendments we are considering government amendments to amend government amendments which amend government amendments. During the eight or nine years that I served on the Government Benches, no measures as complex as the one before us were introduced at such a late stage and at such short notice.

Many of us have only today seen for the first time the amendments before us. Those of us who listened to the debate in another place yesterday evening had hoped for a little light to be shone on the complexity of the amendments that have come before us today. I agree wholeheartedly with my noble friend Lord Jenkin. Let us hope that this will never be repeated in this House again.

Lord Whitty: My Lords, I may have missed something, but I am not sure that any of the comments in our debate have addressed the amendments before

9 Nov 1999 : Column 1280

us, which have been tabled to safeguard the pension arrangements for London Underground staff. They will make their contributions under a new system of funding for London Transport to the future benefit of Londoners and their public transport system.

Having said that, I feel that I must respond to the noble Lord, Lord Jenkin, and the noble Baroness, Lady Blatch. Why are we here? We are not here because we want to produce a complex piece of legislation, but because we are constructively and creatively trying to re-establish a London-wide authority which has been missing for nearly 20 years as a result of wanton destruction by the last regime. Rather than seeking constructive reform of the old GLC, that administration chose instead to abolish it. A complex Bill was introduced to abolish the GLC, followed by a further complicated measure to abolish ILEA. But it is so much easier to destroy something than to create something.

The Bill before us will create a whole new authority to manage the strategic planning, the transport system, the police and the environment of Greater London. That is a difficult and complex job, but one that urgently needs to be done for Londoners. I cannot quite follow the noble Lord, Lord Jenkin, when he used the word "rushed" to describe any of the proceedings that we have had in this House. Nevertheless, I understand that there have been difficulties in the House when dealing with the Bill.

However, the prize we have been seeking, and the outcome which I believe we now have, is to re-establish a strategic authority for Londoners so that they can democratically control their futures in a way that has been so seriously absent because of the destructive views of a previous regime nearly 20 years ago. In commending this Motion and group of amendments, I hope that noble Lords will feel that we have, despite everything, done a good job on the Bill and that it will stand Londoners in good stead.

On Question, Motion agreed to.

Environmental Protection (Restriction on the Use of Lead Shot) (England) Regulations 1999

3.56 p.m.

The Earl of Lytton rose to move, That an humble Address be presented to Her Majesty praying that the regulations laid before the House on 3rd August be annulled (S.I. 1999/2170).

The noble Earl said: My Lords, in speaking to the Motion standing in my name on the Order Paper to annul the regulations S.I. 1999/2170, I preface my remarks by saying that this is probably the last occasion on which I shall address the House. Like the GLC, I am the victim of abolition in lieu of constructive reform.

As always, I declare an interest as someone who owns and runs a commercial pheasant shoot. It employs a number of people in an under-privileged area of the west of England. As a part of the shoot I

9 Nov 1999 : Column 1281

rear several hundred mallard, also for the purposes of shooting. A sizeable part of the holding is in a site of special scientific interest. I am also a member of the Country Landowners' Association, although I have tabled the Motion of my own volition, without prompting from any other person or body.

I have written to the Minister setting out my concerns. In doing so, I stated that I was not fundamentally against a general policy of reducing the amount of lead in the environment. That has of course been an objective of environmental policy across Europe for many years. However, I am bound to take note that a former government vet, Mr Bygrave, stated in a paper produced earlier this year that:


    "no statistically significant accurate scientific evidence credible enough to warrant legal restrictions on the use of lead shot in the U.K. has ever been published".

None the less I take as read the desirability of reducing pollution in wetland areas although I would not go so far as to follow the Danish example with a total ban on the use of lead shot.

I have been informed that in the past the British Association for Shooting and Conservation--BASC--has discussed this measure with the Department of the Environment, Transport and the Regions. Until the later stages, that body had been in some agreement with the Government's proposals, but later on there were differences of opinion, and at that point the DETR decided to go it alone. If that is correct, I should like to ask what consultations--if any--took place with conservation, wildlife and land management interests thereafter, particularly on the powers to be vested in the Secretary of State to authorise entry, search and seizure measures. I should also like to ask about the species criteria contained in the schedule to the regulations. In short, I should like to know who agreed to what on this issue, when, and what peer-reviewed domestic research leading up to the tabling of the regulations had in fact been carried out.

Curiously, the regulations apply to England but not to Wales and Scotland. Therefore my second question to the Minister is: why is that the case? It had long been understood that the intention was to phase out lead shot from wetland areas. I can certainly understand the translation of "wetland" as a term of art into a reference to a wetland site of special scientific interest. However, I have the impression that some of the listed sites are not wetland at all. I therefore ask why those areas are contained in the schedule to the regulations?

Furthermore, the species limitation, particularly in relation to all species of duck, geese and swan, as stated in the regulations, might have been appropriate for a wetland only habitat, but I question whether it is appropriate when extended beyond that to other areas--in fact, all areas--by a species-based criterion. Why is that being done? Perhaps I may ask the Minister whether it is proposed in due course to apply it to all sites of special scientific interest.

I am not aware that shooting with lead shot a duck which I may have reared on my own estate and away from any wetlands constitutes a specific

9 Nov 1999 : Column 1282

environmental risk or reprehensible practice. I rear mallard--not a vast number but several hundred. It is one of the most common species and is often reared for sporting purposes. They are released onto small flighting ponds constructed for that purpose and they also attract other wildlife. The mallard is neither a Red Data Book protected species, nor is it listed in the schedules to the Wildlife and Countryside Act. In his paper, however, Mr Bygrave, to whom I referred earlier, revealed that the Wildfowl and Wetlands Trust Wetland Advisory Service report, entitled Biological monitoring of lead shot replacement in the UK--final report--contract No. CRO 184--Report to the Department of the Environment, published in 1997, commented on the need then for reliable statistical data. I also understand that mallard were selected as the principal study species with tufted duck and pochard as the secondary study species. It occurs to me, therefore, that the inclusion in the regulations of all species of duck may have rather more to do with the choice by conservationists and researchers of species convenient to them for their purposes rather than any compelling case justifying a ban on the use of lead shot for shooting the same species.

Conservationists and others are quite good at taking up issues in this way. Given a fair wind and enough of them giving mutually complimentary lectures, papers and the like, some not very well substantiated assertions assume the veracity of Holy Writ. Governments should be wary of that type of potential disinformation and they should expect the evidence to be properly scientifically scrutinised and conclusive, unless of course the severity of the effects is such as to justify overriding current practice in the interests of the precautionary principle. Anything else simply devalues legitimate conservation and engenders distrust. That is not helpful. I look forward therefore to learning the justification in this instance because I feel that the notice to adjust given to sportsmen and land managers involved in areas outside wetlands, foreshores, estuaries and other such places has been unacceptably short in respect of the wider criteria now being applied. In other words, there is a right way of proceeding, enabling the Government's proposals to be phased in, and there is a wrong way. I think that the wrong way has been chosen and it gets to the point of patent unreasonableness.

I do not wish to become too much involved in alternatives to lead shot but, according to my understanding, Bismuth/tin, tungsten matrix and steel shot cartridges cost between two and four times that of the lead equivalent. That is because there is a shortage of supplies. The industry has not had time to adjust to the scale of the effect now facing it. The American experience with steel shot is certainly not accurate in this situation and not directly comparable to England where guns are often of lighter construction and different build. Therefore, there are significant risks in using some types of alternative ammunition in these guns.

That is not to say that a reasonable cost increase should outweigh demonstrable conservation concerns. I am simply saying that I do not think that those

9 Nov 1999 : Column 1283

overriding conservation concerns have been proven in this instance. There is no precautionary principle at stake with mallard, as they are reared and by and large very common, or for that matter with Canada geese, which fundamentally are grass eaters. As far as I am aware--I stand to be corrected by any noble Lord who knows better--neither species shows widespread morbidity through lead ingestion. A two to fourfold increase in ammunition costs is a severe impediment. So I ask the Minister to indicate what is the Government's justification for applying the restriction so widely as opposed to a more orderly phasing in if the evidence actually shows that that is necessary and desirable.

The regulations insert provisions empowering the Secretary of State to authorise entry, search and seizure similar to those contained in Section 108 of the Environment Act 1995, a measure intended to provide for the effective intervention by the Environment Agency's staff in the event of serious pollution incident or risk, for the protection of human life and health and, specifically, for the execution of the agency's functions of investigation in that respect. Sadly, those relevant savings clauses in relation to the section's application to those functions of the Environment Agency have not been replicated in the regulations. Can the Minister say why similar savings are absent in this instance?

So conveniently wide-ranging are some of these powers--particularly those of Section 108--that I have been informed privately by another noble Lord of instances where the police seek to involve the Environment Agency's personnel in order to gain them access to premises which under normal police powers they could not have achieved. Noble Lords may consider that far-fetched and I am bound to admit that I do not have any direct personal evidence. But I do have direct knowledge of an analogous situation from the time when I myself was a public servant so I can say that to my own certain knowledge that kind of thing does go on.

I have considered the precedents for Section 108, the powers of entry, search and seizure, which are almost unique on our statute book. They are there for the understandable purposes which I described earlier. Unfortunately, paragraph 4 of the regulations does not recite them. I am indebted to the Library of your Lordships' House for unearthing a paper on entry, search and seizure by Professor Richard Stone of Nottingham Trent University which sets out the powers available under various Acts of Parliament. I should like to hear from the Minister why such powers have been considered appropriate here and what environmental imperative justifies them. It is one thing for the Environment Agency to authorise trained personnel to investigate where necessary and to protect the general public from serious pollution and health and safety risks; it is quite another for the Secretary of State to be given powers to authorise any person at all to enter onto land to perhaps seize a dead duck to check whether it has lead shot in it. In short, the powers are wholly disproportionate.

9 Nov 1999 : Column 1284

Even in a case of dangerous dogs, an application for access has to be via a justice of the peace and the information justifying the order for access has to be given on oath and to the effect that there are reasonable grounds for believing that an offence is being committed. While under Section 108 of the Environment Act the powers are very wide, they do, as I said, relate to checking on compliance, carrying out the pollution control functions of the agency, determining whether such a function should be carried out, or carrying out an assessment and preparing a report required by the Minister. But even in the case of preparing a report, the power of entry relates only to incidents or potential incidents involving serious pollution to the environment, harm to human health, danger to life, and so on, while the seizure of property applies only where those items to be seized have caused, or are likely to cause, pollution to the environment or harm to human health. I agree with the views of the Country Landowners' Association that the Wildlife and Countryside Act powers are more appropriate here, not those of the Environment Act 1995.

What will be the outcome? If the House will excuse the pun, in the case of shot wildfowl, the sportsman and landowner are quite simply sitting ducks. The evidence is transient and highly portable. It could be introduced by a third party or even by the person purporting to carry out the investigation for which access is required. It seems to me that there is absolutely no defence, particularly if, as I suspect, we are dealing with environmental strict liability. Can the Minister say how the liability issue will be addressed? What standard of proof will apply and how will the innocent be protected?

Noble Lords may think that no one would stoop so low as to concoct evidence. But I say this to the House: an official of English Nature once told me of his abiding suspicion that a particular species had been introduced to a site for the purposes of procuring for that site a protection that it did not otherwise merit. It was supposed to have been introduced by a third party, but he lacked absolute proof.

Environmental sharp practice is not new. It is a risk that most landowners accept in the greater interest of environmental protection. But to say that landowners and those using lead shot in shotguns for legitimate sporting purposes should be put at such risk, with non-recourse powers of entry, possibly by unqualified personnel--the regulations do not state whom the Secretary of State shall appoint--bereft of the caveats of the legislative parentage of Section 108 of the Environment Act is wrong. When it also involves a potentially criminal act of using a firearm, it is not surprising to hear, as I have, concerns being raised in some quarters as to whether this provision is more about firearm and shotgun control than the legitimate protection of bottom feeding species of wildfowl in important wetland habitats.

Therefore, will the Minister tell the House what the Government's intentions really are? The Prime Minister may state that there is no agenda to ban shooting after a hunting ban--and I am prepared to

9 Nov 1999 : Column 1285

believe that--but the body language of this new regulatory power appears to be saying something rather different. We should be told the reality.

The effects of the regulations would in some instances be patently absurd. Away from a site of special scientific interest scheduled in the regulations, a pheasant can be killed with lead shot with impunity, but not if it is pricked and wanders off or falls to earth to die within a scheduled SSSI. A mallard reared for the purposes of shooting on the same estate may not be shot with lead at all. A landowner may shoot with lead shot a mallard on the Welsh or Scottish side of his hill, but not on the English side. A farmer in a scheduled SSSI may not shoot anything with lead shot, whether it be crows, magpies or rabbits. Matters have moved away from what I understood was an agreed geographical approach based on wetlands and marshes to an SSSI base, which may include all kinds of different land forms, some of them not involving much, or anything, in the way of wetland at all. And, of course, a species criterion has been inserted on the way, which has the effect of far wider geographical application than was ever originally envisaged, and without good scientific grounds.

That causes confusion and consternation. It creates high risks with criminal sanction and potentially large gaps in the fabric of the necessary protection of the individual before the law. It bestows direct liability and penal costs on legitimate activities for no substantial reason; and it could seriously disadvantage the genuinely harmless pursuit of sports away from sensitive areas. It will certainly increase the costs of sport in terms of ammunition, ensuring compliance by shoot managers, landowners and those who are entrusted with enforcing the legislation. As I wrote to the Minister, it may be appropriate to criminalise culpable neglect, but not honest mistake or innocent acquiescence.

The department has indicated that, currently, only the police will be authorised to enter on to land. Will the Minister confirm that for the benefit of our discussion today? If so, the regulations should state as much. As framed, they are far too wide, having regard to the nature of the objectives, and could readily by changed at a moment's notice at the whim of Ministers. Please will the Minister give some reassurance on that point?

I am bound to say that minor infringements relating to the ownership of shotguns have recently been interpreted by the police as prima facie grounds for the withdrawal of licences. If a licence holder can be taken to court by the police for telling his mother where he keeps the key to the gun cabinet, as was reported in the press recently--thankfully, the case was thrown out by the High Court--surely this statutory instrument will produce high risks related to the shooting of common species protected from certain types of shot solely by the regulations. Moreover, how enforceable will the legislation be? Or will the law be seen as an ass?

This looks like bad law. It is unjustified in its extent; unreasonable in its effect; and inconsistent in its application. It uses the wrong legislative precedent.

9 Nov 1999 : Column 1286

The Minister should either give the House a reasoned justification for it, or undertake to review its terms. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the regulations laid before the House on 3rd August be annulled (S.I. 1999/2170).--(The Earl of Lytton.)

4.15 p.m.

Lord Marlesford: My Lords, first, I should declare an interest. I take part in shooting, although not commercially. We are all grateful to the noble Earl for providing the opportunity to debate the statutory instrument. I do not want to deal with the technical aspects of whether or not it is necessary to protect wildlife. The noble Baroness, Lady Young of Old Scone, kindly supplied me with a great deal of information on that aspect. I read it carefully and did not find it immensely convincing. We shall no doubt hear from the noble Baroness later.

There is a suggestion that an international obligation is involved. I find it hard to think that we in Britain should have to do this kind of thing for international obligation at a time when in Europe the Spaniards are still allowed to torture bulls to death in public for amusement. Be that as it may.

I want to discuss the way in which the Government have set about this matter and in particular the use of the powers of entry into private property. Taking powers of entry is a very serious matter in this country. In a parliamentary Question on 28th October, I asked on how many occasions since May 1997 the Government had laid statutory instruments giving powers of entry to private property. The Government's Answer was that it would be a disproportionate effort to answer the Question. Surely that indicates their attitude. So I asked our most efficient House of Lords Library. Using the Lexis legal database, and by tapping in "powers of entry", some 15 statutory instruments were immediately found.

Yesterday, my noble friend Lady Blatch asked the same Question about powers of entry. She received a similar Answer from the Home Office Minister; namely, that it would be a disproportionate effort to investigate on how many occasions that had happened--although he went on to say:


    "An initial survey"--

whatever that means--


    "has indicated that 35 statutory instruments giving powers of entry to private premises may have come into force since May 1997".--[Official Report, 8/11/99; col. 1152.]

I hope that the Government will reconsider their reply. I hope that they will accept that enough of us regard this as an important matter for them at least to satisfy us that they keep a careful record of the number of occasions on which they have allowed this kind of thing to happen.

The matter is important enough for any decision by the Government to introduce a statutory instrument allowing powers of entry to private property to be taken at the highest level. Ideally, one would like it to be taken by Mr Alastair Campbell, who has great

9 Nov 1999 : Column 1287

knowledge of the implications for public policy. But at the very least, surely the decision should be taken by the whole Cabinet.

Let us have a little more detail on exactly what is involved in this particular statutory instrument. It does not include premises used for residential purposes. But does it include all other premises? Land, vehicles and vessels are included, but are shops included? What about farm buildings? Legislation in such matters must be precise.

The noble Earl referred to the question of who has the power to enforce the legislation. In his parliamentary Answer, the noble Lord, Lord Whitty, told me:


    "The decision on who will enforce the regulation lies entirely with the Secretary of State".--[Official Report, 28/10/99; col. WA 41.]

That is delegated legislation within delegated legislation. Will the Government at least inform Parliament if they decide to give consent to anyone other than the police, who have been given the primary responsibility so far, to implement the powers of entry?

I have consulted the police. They indicated that they would be very unhappy if anyone other than themselves had such powers of entry. Certainly, that view applies to local authorities. I understand that this regulation will not be top of police operational priorities and that essentially enforcement will be on the basis of complaints. Given the stretched resources of the police, particularly in rural areas, I suspect that in most cases enforcement will be minimal. The problem of trying to prove an offence, will, I believe, be that in a number of cases it will be difficult to establish who has fired any particular shot.

Aggressive enforcement runs the risk of damaging relations between country people and the police. That is most undesirable in rural areas where the police are particularly dependent on the eyes and ears of ordinary people including those who shoot, especially through neighbourhood watch schemes, to prevent and detect real crime. Unenforceable law is bad law. Because of the way that this instrument is drafted I believe a large part of it will be unenforceable.

We should never forget that statutory instruments originated with Henry VIII's Statute of Proclamations of 1539. That was a tyrannical Act later repealed. The Act said that any royal proclamation should have the force of law. I believe that in accordance with today's standards of parliamentary scrutiny we should be able to ask the Government to think again. However, I am aware that in this House it is not the convention to follow a prayer against a statutory instrument with a vote that would require the Government to reconsider it. I hope that the interim House may have more confidence in these matters and consider changing that particular convention.

I remind the Government who, from the tone of Answers to my earlier Questions appear to feel irritation that we question these matters, that from the days of Magna Carta the function of Parliament has never been to be a convenience to the executive. It is to

9 Nov 1999 : Column 1288

be an inconvenience to the Government. Therefore, I make no apologies for raising today what I regard as a serious matter.


Next Section Back to Table of Contents Lords Hansard Home Page