House of Lords - Explanatory Note
Countryside And Rights Of Way Bill - continued          House of Lords

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Schedule 9

168. This Schedule contains consequential amendments.

PROVISIONS FOR THE ENFORCEMENT OF WILDLIFE LEGISLATION

Summary

169. Clause 71 and Schedule 10 make new provision about the enforcement of wildlife legislation.

Background

170. In response to concern about the enforcement of the provisions of Part I of the Wildlife and Countryside Act 1981, the then Secretary of State established in 1994 a working group to consider the scope for improvements in the enforcement of wildlife species controls. The working group reported in 1995. Further to this report the Secretary of State established a further group to consider changes to wildlife enforcement legislation. The group submitted its recommendations in 1997. Following consultations, the majority of the recommendations were accepted and form the basis of the changes in the Bill.

171. All wild birds, some animals and some plants are protected by the 1981 Act. Some controls protect specimens in their natural habitat, for example it is an offence to injure, kill or take such specimens from the wild. Further controls ban the sale (and related activities) of these specimens unless a licence has been obtained. Another layer of protection is provided for certain bird species, which must be ringed and registered with the DETR if held in captivity.

172. The Bill will not affect these controls significantly or change the species to which they apply.

173. The measures in the Bill will increase the enforcement powers under the 1981 Act, and will increase the sentencing options available to the Courts.

Commentary on clauses

174. In Clause 71, subsection (1) introduces Schedule 10. Subsections (2) and (3) provide that in future Regulations made to implement the EU Habitats Directive (Council Directive 92/43/EEC) or the EU Wildlife Trade Regulation (Council Regulation 338/97 which amongst other things implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora) will be able to create offences, which on summary conviction will attract a custodial sentence of up to six months. This overrides paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972, (which would otherwise prevent the regulations from imposing more than three months' imprisonment). It will mean that the penalties for wildlife offences across these pieces of legislation can be consistent with those now being introduced into the Wildlife and Countryside Act 1981.

Schedule 10

175. Paragraph 1 provides further protection for certain birds. It is already an offence to intentionally disturb birds listed on Schedule 1 (mainly the more rare breeding birds). It has proved difficult to prosecute the offence, mainly because of the need to prove that the defendant went with the objective of causing disturbance. By adding the lesser test of reckless disturbance, a prosecutor will have to show that a person either deliberately took an unacceptable risk or failed to notice an obvious risk and thereby caused disturbance.

176. Reckless disturbance in the context of interfering with a badger sett is an offence under section 3 of the Protection of Badgers Act 1992.

177. Paragraph 2 replaces the reference to special penalty offences from section 3 of the 1981 Act, (see commentary below on paragraph 10).

178. Paragraph 3 removes the reference to 'persons registered with the Secretary of State' from section 6. This and the repeal of related sections will remove the statutory framework for the now discontinued Registered Sellers of Dead Birds Scheme. On 20 July 1994 Ministers announced their intention to replace the scheme with a general licence (which is issued under section 16 of the Act and allows actions which would otherwise be unlawful under various sections of the Act) and following a period of consultation, such a licence was issued on 21 December 1994.

179. Paragraph 4 lists the offences in the 1981 Act which attracted a special penalty (see commentary below on paragraph 10). It preserves the provisions which enable the Courts to ban people found guilty of such offences from keeping specimens of bird species listed in Schedule 4 of the Act for up to five years.

180. Paragraph 5 extends the offence in section 9(4) of the 1981 Act of intentionally damaging any structure or place which a wild animal listed in Schedule 5 to the Act uses for shelter or protection or intentionally disturbing any such animal while in such a structure or place, so that the offence also covers reckless damage or disturbance. However, due to their ecology certain Schedule 5 marine species, namely cetaceans and basking sharks, do not have such places of shelter or protection and it would be difficult to apply section 9(4) to them. These species are considered vulnerable to reckless disturbance, for example due to inappropriate use of motorised personal watercraft. Therefore an offence of intentionally or recklessly disturbing a cetacean or basking shark in any place has been added. Paragraph 6 is consequential on this new offence.

181. Paragraph 7 provides that for all offences under Part 1 of the Act, justices of the peace will be able to grant police officers search warrants to enter premises, where they are satisfied that there are reasonable grounds for suspecting that an offence has been committed, and that evidence will be found on those premises.

182. This extends the provisions in the Act, which do not provide for search warrants to be issued for offences which would not attract a 'special penalty' and certain other offences. As an example, the Act provides for a search warrant for offences against a redwing (listed on Schedule 1), but not a mistle thrush (not so listed).

183. Paragraph 8 inserts two new sections into the 1981 Act. Section 19ZA relates to the powers and role of wildlife inspectors; section 19ZB sets out the powers to take samples for DNA analysis.

184. At present sections 6, 7 and 14 provide powers of entry for wildlife inspectors (newly defined as a person authorised by the Secretary of State in section 19ZA(1)). The first two include a power to enter dwellings but the latter only relates to "land" Section 19ZA replaces those powers and broadens them.

185. Inspectors will be empowered to enter premises in order to ascertain whether an offence related to a sale, bird registration or release into the wild has been or is being committed. In general this power will not extend to dwellings. However inspectors will be able to enter dwellings which are occupied by people who have:

  • submitted applications or obtained licences to sell controlled birds, animals and plants (alive or dead);

  • submitted or obtained licences to release specimens to the wild (section 14);

  • applied for or been granted registration documents (section 7) for Schedule 4 birds.

186. This power of entry will be subject to safeguards provided in a non-statutory Code of Practice, a draft copy of which has been placed in the Library of the House.

187. If the specimen which is the subject of the application or registration is not kept at the applicant's address, the inspector can require it to be presented for inspection - wherever it is held. People who have live specimens in their possession or control will be required to assist the Inspector so that he can examine the specimen.

188. It will be an offence to obstruct an inspector when he is exercising these powers, or to fail to assist him without reasonable cause, and a penalty of up to £5,000 (Level 5) will apply.

189. Section 19ZB introduces powers for wildlife inspectors or constables to require blood or tissue samples for DNA analysis. The powers in subsections (1) and (2) of the section will be exercisable by constables, and those in subsections (3) and (4) by wildlife inspectors in certain circumstances.

190. Samples may be taken to determine the identity or ancestry of a specimen so long as it will cause no lasting harm to that specimen. For birds and animals, the sample will always be taken by a veterinary surgeon.

191. To prove ancestry, it will be necessary to take samples from specimens other than the specimens subject to the licence or registration or connected with the reason for the issue of a search warrant. Subsection (3) of the section provides for inspectors and constables to require any person (including the applicant) to make other specimens available for sampling where that is likely to confirm or disprove the identity or ancestry of the subject specimen, as well as from the subject specimen itself.

192. The Control of Trade in Endangered Species (Enforcement) Regulations 1997 already contain powers for inspectors to take samples from species listed in the Annexes to the EC Wildlife Trade Regulation (No. 338/97) in certain circumstances.

193. It will be an offence to obstruct an inspector who is exercising his power to require a sample; or refuse to make a specimen available or assist an Inspector or constable without reasonable cause, and a penalty of up to £5,000 (Level 5) will apply.

194. Paragraph 9 provides that for all offences under Part 1 of the 1981 Act, prosecutions are able to be brought within a period of six months from the date on which sufficient evidence of the offence became available to the prosecutor, subject to a limit of two years of the commission of the offence.

195. The current legislation already provides for some offences to be subject to this time limit, but for others, prosecution must take place within six months of the commission of the offence. These different time limits cause anomalies, for example the time limit for a prosecution for killing a bird is different to that for injuring it. In cases where the results of DNA analysis are important, the longer time period will be useful because the results often take some weeks to obtain.

196. Paragraph 10 introduces custodial sentences into Part I of the 1981 Act. At present fines ranging from Level 3 (£1,000) to Level 5 (£5,000) on the standard scale can be imposed. The change is that fines of up to Level 5 and/or the possibility of a custodial sentence of up to six months will be available for all Part 1 offences. For that reason the references to "special penalties" have been removed from the Act, but their effect has been preserved in relation to sections 3(1)(c) and 7(3)(a) of the 1981 Act.

197. For releases to the wild, at present a fine up to the statutory maximum (£5,000) in the magistrates' court and an unlimited fine in the Crown Court, is available. The change is that magistrates will have the possibility of imposing a custodial sentence of up to six months, and in the Crown Court, a custodial sentence of up to two years will be possible.

198. The exception is offences of obstruction of a wildlife inspector. Such offences will be subject to a fine only, of up to Level 5, except where the obstruction is in relation to releases to the wild where a fine of up to the statutory maximum (£5,000) can be imposed in the magistrates' court, and an unlimited fine in the Crown Court.

199. Most other wildlife legislation, including the Protection of Animals Act 1911, the Protection of Badgers Act 1992, the Wild Mammals (Protection) Act 1996 and the Control of Trade in Endangered Species (Enforcement) Regulations 1997 already provide the possibility of a custodial sentence.

200. Paragraphs 11 and 12 contain consequential amendments.

PART IV: MISCELLANEOUS AND SUPPLEMENTARY

201. Clause 72 amends section 39 of the Wildlife and Countryside Act 1981, which enables local authorities to enter into management agreements with the owner of land for its conservation (and for other related purposes). The amendment enables the Countryside Agency and the Countryside Council for Wales to enter into such agreements with landowners. These bodies could, for example make agreements with the owner of land for its dedication to access under clause 16, or for its long term conservation.

202. Clause 73 relates to Wales. Ministerial functions under the Highways Act 1980 and the Wildlife and Countryside Act 1981 relating to Wales have been transferred to the National Assembly for Wales by the Wales (Transfer of Functions) Order 1999 (S.I. 1999/672). The clause provides that in Schedule 1 to that Order the reference to each of those Acts is to be taken to be a reference to the Act as amended by the Bill. This makes it unnecessary for the Bill to refer expressly to the Assembly when making textual amendments of either Act which confer new functions on the Secretary of State. The clause ensures that the new functions conferred on the Secretary of State by provisions inserted into the 1980 Act or the 1981 Act will be exercisable by the Assembly in relation to Wales.

FINANCIAL AND MANPOWER EFFECTS OF THE BILL

Part I - Access to the Countryside

203. Following the outcome of the 1998 Comprehensive Spending Review, £2 million has been provided to the Countryside Agency for additional expenditure on access in England for 1999-2000. The Regulatory Impact Assessment suggests total annual costs of £2.7 million, with £7.6 million one-off costs. Costs to the public sector (central and local government and statutory agencies) are estimated at around £2.2 million annually with one-off costs of about £6.4 million: these cover costs of mapping access land; providing wardens, stiles, and information to help manage access; producing codes of practice and other guidance; and establishing local access forums. Public sector manpower effects are expected to be limited: local authorities will, where necessary, employ additional wardens and be responsible for enforcing means of access; the statutory countryside and conservation bodies will require some extra staff to deal with mapping, and closure arrangements; and additional resources will be needed by Central Government to handle appeals on maps.

Part II — Public Rights of Way and Road Traffic

204. Implementation of the provisions in Part II of the Bill is expected to cost local authorities between £12 and £19 million per annum arising principally from the new landowners' and occupiers' right of application and appeal for public path orders, a public right to serve notices on local highway authorities for the removal of certain obstructions, the redesignation of RUPPs as restricted byways, and closures or diversions of rights of way for crime prevention in designated areas and schools.

205. The costs to central government are estimated at up to £7 million annually. These will arise principally from the court costs associated with the new public right to serve notices on local highway authorities for the removal of obstructions, and from appeals in relation to the right to apply for certain orders.

206. The Department of the Environment, Transport and the Regions will cover the central government costs in England and local authority costs in England and Wales. The costs to central government in Wales will be met by the National Assembly for Wales.

207. Public sector manpower effects will be limited to some minor adjustments to staffing levels and duties in local authorities, the Planning Inspectorate, which deals with opposed rights of way orders and Government Offices for the Regions, which handle appeals to the Secretary of State.

Part III — Nature Conservation and Wildlife Protection

Sites of Special Scientific Interest

208. Increases in grant-in-aid for English Nature of £6m in 1999-00 and a further £5m in 2000-01 already enable progress to be made with regard to improvements in the condition of SSSIs, in advance of legislation. In order to exercise the increased powers and new provisions in the Bill, English Nature is recruiting approximately 25 extra staff, and is likely to make additional bids for resources in future years. The speed with which further improvements can be delivered will be related to the resources made available.

209. Public bodies are already subject to existing provisions in s11 Countryside Act 1968. The new legislative provisions will focus this more clearly, in the context of protecting and managing SSSIs and may require minor adjustments to resources.

210. There will be very minor additional costs to the Planning Inspectorate for providing Inspectors for the appeals process and minor additional staffing costs for the Department of the Environment, Transport and the Regions.

211. About 5 extra permanent staff and between 10-15 short term project staff are estimated as required for the Countryside Council for Wales to deal with the review of existing consents, work notices, prosecutions, appeals and transitional arrangements The Countryside Council for Wales has received a £200k increase in funds for 2000-01 for the implementation of measures within the Bill and the implementation of the EC habitat and Birds Directive.

Wildlife Enforcement

212. The wildlife enforcement provisions are unlikely to have significant financial or manpower implications, since their main thrust is providing stronger powers for the police. The introduction of custodial sentences will have a minimal financial effect and are likely to be used in very limited circumstances, for example in cases of significant financial gain, or for persistent offenders.

SUMMARY OF THE REGULATORY APPRAISAL

Part I — Access to the Countryside

213. The Regulatory Impact Assessment (RIA) indicates that the quantified benefits of a new statutory right of access outweigh the costs by a significant margin. Such costs and benefits have been considered along with unquantified costs and benefits. The RIA suggests there may be some costs for certain landowners or managers, but the Bill's provisions for closing land or otherwise restricting access are expected to mitigate or eliminate altogether any adverse effects.

214. Benefits to business would include increased tourism and greater opportunities for farms to diversify. For public sector bodies anticipated benefits include a degree of simplification of access management and savings in costs of payments on existing access agreement when they lapse. For users, principally walkers, there would be benefits in terms of more and better quality of access, including greater permanency of access.

215. A copy of the regulatory impact assessment may be obtained from the Department of the Environment, Transport and the Regions, Eland House, Bressenden Place, London, SW1E 5DU

Part II - Public Rights of way and road traffic

216. The Regulatory Impact Assessment shows that the financial costs arising from the Rights of Way and Road Traffic proposals will be borne predominantly by local and central government. These will be balanced by benefits from the improvement and modernisation of rights of way networks, easier access, increased accountability and democracy, clear strategies with better monitoring and evaluation, more information and enhanced decision-making on rights of way.

217. The assessment found that several proposals — the right of application for certain orders, nature conservation measures, control of off-road vehicles, enhanced local authority order-making powers and reclassification of RUPPs - could affect the availability of some routes to certain users of rights of way. Significant overall benefits to users would come from measures to ensure swifter clearing of obstructions, general improvements to the rights of way network, easier and earlier access to some routes, and greater certainty and clarity of the ways available.

218. For land managers, the assessment identified the costs of removing obstructions sooner rather than later. The clauses relating to nature conservation and access for less mobile people would, although comparatively rarely, constrain some land management options. Conversely, the right to apply for diversions and closures, the Roads Used as Public Paths redesignation provisions, the ban on off-road vehicles and the reform of order procedures will bring benefits for land managers in the form of greater clarity and certainty, fewer restrictions on management, reduced conflict and better enforcement.

219. In the longer term, users and land managers alike could expect to benefit from the existence of a more modern rights of way network and from increased responsiveness to changes in the needs of users and to alterations in land use requirements.

220. The regulatory impact assessment demonstrates that there will be no significant costs to business arising from the proposals in this part of the Bill.

221. The package of rights of way measures amends the legal framework so as to assist those responsible to improve the execution of their rights of way duties, in particular by widening the order making powers and making available procedures for the better management of legal records of public rights of way. Local authorities are expected to meet the standards associated with the "Best Value" initiative, which requires them continuously to improve the performance of all their duties, including their rights of way functions.

222. A copy of the draft regulatory impact assessment may be obtained from the Department of the Environment, Transport and the Regions, Tollgate House, Houlton Street, Bristol BS2 9DJ.

Part III — Nature Conservation and Wildlife Protection

Sites of Special Scientific interest

223. The Regulatory Impact Assessment for SSSIs suggest that the measures will deliver a major environmental benefit through improvements to the protection and positive management of SSSIs, which are nationally important sites for natural and earth heritage. There will be an increased regulatory burden on those land managers whose activities may be damaging to the special features in an SSSI (although there will be rights of appeal where activities are curtailed). There will be some increase in costs to the public purse, through the additional regulation, but monies will in future be better directed towards the positive management of SSSIs, rather than compensation for profits foregone.

224. A copy of the regulatory impact assessment may be obtained from the Department of the Environment, Transport and the Regions, Eland House, Bressenden Place, London, SW1E 5DU.

Wildlife enforcement

225. A regulatory impact assessment was not necessary for the wildlife enforcement provisions as they do not impose any new regulatory burdens or new costs on business.

EUROPEAN CONVENTION ON HUMAN RIGHTS

226. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before Second Reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Whitty, Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions, has made the following statement:

In my view the provisions of the Countryside and Rights of Way Bill are compatible with the Convention rights.

COMMENCEMENT

227. Certain provisions of Part I, including the provisions about mapping, are to come into force two months after Royal Assent. The new statutory right of access is to come into force on a date or dates appointed by the Minister, or in Wales the National Assembly for Wales, by order.

228. The Rights of Way and SSSI provisions will be brought into force by commencement order.

229. The wildlife provisions will come into force two months after Royal Assent with the exception of clause 71(2) and (3) (which allows regulations implementing certain EU legislation to impose custodial sentences of up to six months) which will come into force on Royal Assent.

 
 
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Prepared: 20 June 2000