Natural Environment and Rural Communities Bill

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Jim Knight: Clause 41 places a duty on the Secretary of State to publish lists of living organisms and types of habitat in England that she believes to be of principal importance for the purpose of conserving biodiversity, and to consult Natural England before doing so. The clause reflects the current position, which was introduced by section 74 of the Countryside and Rights of Way Act 2000.

The clause requires the Secretary of State to take reasonably practical steps to further—how nice to use that word—the conservation of living organisms and types of habitat, to promote the taking of other such steps, to keep under review the published list, and to publish any revisions of the list.

Clause 42 places similar duties on the National Assembly for Wales, requiring it to consult the Countryside Council for Wales in carrying out the duties.

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Amendments Nos. 4 and 5 propose that the Secretary of State and the National Assembly for Wales should consult other bodies as they see fit. As they are likely to want to consult other interested bodies—I am about to say what the hon. Member for Brecon and Radnorshire thought I might—the amendments are not necessary and do not add anything. In the normal course of things, we should and do consult; whom we consult should depend on the issue on which we are consulting. If anything, the amendment would weaken the clause by reducing the important roles to be played by Natural England and the Countryside Council for Wales, although I do not want to overplay that point.

In essence, the hon. Gentleman and I disagree, as ever, on whether something should be explicit in the Bill or implicit. I argue, as ever, that implicit is sufficient. On that note, I hope that he will withdraw his amendments.

Mr. Williams: I have heard the Minister’s comments and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Moon: I beg to move amendment No. 128, in clause 41, page 14, line 39, leave out ‘promote’ and insert ‘ensure’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 61, in clause 41, page 14, line 39, at end insert—

    ‘having regard to the financial costs which such steps would incur’.

No. 129, in clause 42, page 15, line 11, leave out ‘promote’ and insert ‘ensure’.

Mrs. Moon: I listened to the Minister’s explanations on clause 40 and was particularly pleased to hear his assurance that a responsibility will be placed on local authorities to include biodiversity issues in planning application forms.

In many respects, the issues covered by clauses 41 and 42 flow from clause 40. We are talking about the Secretary of State and the National Assembly for Wales having responsibilities to publish lists of species of principal importance, not about their having a general regard for biodiversity. Species of principal importance may be rare or at risk of loss and may be of European as well as UK importance.

How do we ensure that we give the list a statutory power for delivery among those authorities that are required under subsection (3)(b) to

    “promote the taking by others of such steps.”?

A questionnaire was sent out by the Association of Local Government Ecologists, and the drive for local authorities to take action on biodiversity was right there in their top three priorities: legislation and statutory obligations, Government policy guidance and—surprise, surprise—funding incentives.

11.45 am

What we have here is a list that is backed by policy guidance and statutory obligations. It will have greater authority when local authorities and regional development agencies look at it. I cannot speak about
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the regional development agencies in England, but the Welsh Development Agency is not noted for its commitment to, interest in or role in the conservation of biodiversity or species of principal importance.

Mr. Williams: I have listened to the hon. Lady, but one Member is appointed to the board of the WDA to have specific responsibility for wildlife and diversity issues.

Mrs. Moon: I am aware of that. However, as always, it is a voice and what matters is how often that voice is listened to. The hon. Gentleman will agree that that voice is often crying in the wilderness.

We are looking for a chance to ensure that the list is proactive and not passive. We have such lists in Wales. The issue is the status of the list. The hon. Member for the traffic jam of South-East Cambridgeshire expressed concern at putting definitive responsibility on local authorities. Here, we must push the responsibility because we are discussing a list of species of principal importance. I want to ensure that the necessary steps are taken, not merely promoted. The hon. Member for Brecon and Radnorshire (Mr. Williams) referred to a voice in the Welsh Development Agency. I am sure that that voice promotes the taking of such steps by the WDA and I am sure that that happens on equivalent bodies in England. If species of principal importance are to be protected, the responsibility must be to ensure that the necessary steps are taken.

I welcome the Minister’s announcement of an additional £850,000 for local biodiversity partnerships. I hope that that will enable us to add to the species list, so that we ensure that it increases and does not decrease.

I am sure that the planning inspectors would note the responsibility for species on the list if they were required to ensure their protection.

Mr. Paice: I have listened with interest to the hon. Lady and do not dissent from her desires, but I am concerned about her proposal that the Secretary of State should have the power to ensure—that effectively means enforce—that local authorities and other public bodies deal with the list. The drafting of my amendment may not be the best, but it tries to flag up my concern that the Secretary of State may, even with the word “promote”, put obligations, even if they are only moral obligations, on public bodies, and particularly local authorities, regardless of the financial cost. There may be arm twisting in the form of promotion. That is a difficult issue. Most of us would say, when we are talking about endangered species and the biodiversity action plan species, that, clearly, we should not have to think about what the cost is, because the long-term costs to the country, as the hon. Members for Bridgend and for Bury, North said earlier, are terribly important. I agree with that.

I am also conscious, as we all are, of the reference by the hon. Member for South-East Cornwall to the ever-increasing obligations on local authorities to do things without the cash flow to do them. It is one reason that council tax has been rising so much faster than
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inflation during the past few years. Obviously, there are many other reasons, but more and more duties without the Government funding them is one.

The purpose of amendment No. 61 is to insert the provision that when the Secretary of State promotes the taking by others of such steps, it should be done—using the Government’s own phrase—“having regard to” the financial costs that such steps will incur. In other words, the amendment is making the Secretary of State stop and think, not necessarily that the steps should not be taken, but that they could be expensive. If the Secretary of State is going to say to local authorities “You need to take these steps,” or by using “promotion”, “We want you to,” the Government should provide the wherewithal to do so. I am seeking not to stop the action, but to ensure that the council tax payer is not yet again forced by local authorities to pay for another responsibility that the Government, in imposing that obligation on local authorities, have not directly supported.

It is a straightforward point. I entirely agree with the principle of the proposal in the legislation. The Secretary of State should promote the taking by others of such steps, but we must flag up the issue of cost, not to stop those steps being taken, but to give some thought to who will pay and how. As the hon. Member for Bridgend said in relation to the Association of Local Government Ecologists, the funding question is always there and one cannot ignore it. It needs to be incorporated in that responsibility, and that is why I have tabled amendment No. 61.

Jim Knight: I have already sketched out what clause 41 seeks to do. Amendments Nos. 128 and 129 change the duty for the Secretary of the State and the National Assembly for Wales from promoting the taking of steps by others to further the conservation of biodiversity to ensuring it. The duty of the Secretary of State and the National Assembly for Wales to promote the taking of such steps already exists in section 74 of the Countryside and Rights of Way Act 2000. So, we do not seek to change anything, and the judgment about whether we have got the provision right is about whether what is in operation is working.

The duty is being carried out effectively, and there would be no additional value in changing the wording from “promote” to “ensure”. I see my hon. Friend the Member for Bridgend shaking her head. There may be some difficulty about how we would enforce “ensure”, but I hope that on the basis of what I have said and of our discussions about clause 40, she will withdraw her amendment.

Amendment No. 61 would require the Secretary of State to have regard to the financial steps that she promotes others to take to further the conservation of the living organisms and types of habitats included in any list published under this provision. I should expect any decision to be based on the three pillars of sustainable development and therefore to incorporate social, environmental and economic considerations. In addition, this part of the clause refers to those steps that the Secretary of State would “promote” others to
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take, and therefore there would be no obligation on others to take those steps if they believed that they would be unduly costly. Value for money and financial implications are already comprehensively integrated, and I do not, therefore, believe that the amendment is necessary or desirable.

The clause goes no further than section 74(2) of the Countryside and Rights of Way Act and already includes the concept of practicability in the steps that should be taken to further the conservation of biodiversity. Practicability would clearly include financial considerations. I hope that I have given the hon. Member for South-East Cambridgeshire sufficient comfort to persuade him not to press his amendment.

Mrs. Moon: I am sorry to hear the Minister’s reply. It is because the list has little impact in Wales that I tabled the amendments. It is given scant regard because its status and authority are in doubt. The stance that he has taken will ensure that that happens in England, too. I shall take heart from his words about clause 40 and the idea that recognition of the Government’s determination to move forward on issues of biodiversity will raise the status of the lists. I want to see an improvement on “regard” and I want local authorities in Wales and in England to take cognisance of the lists. If I do not see that happen, I will make the Minister’s life a misery. With that in mind, and on the understanding that he can look forward to my making his life a misery, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clause 42

Biodiversity lists and action (Wales)

Mr. Williams: I beg to move amendment No. 77, in clause 42, page 15, line 2, leave out ‘must’ and insert ‘may’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 78, in clause 42, page 15, line 5, leave out ‘must’ and insert ‘may’.

No. 79, in clause 42, page 15, line 7, leave out ‘must’ and insert ‘may’.

No. 80, in clause 42, page 15, line 12, leave out ‘must’ and insert ‘may’.

Mr. Williams: On Second Reading, I suggested that we should examine the Bill to see whether it gave due recognition to the fact that the Assembly is a national Government for Wales and should be given the same recognition as other devolved Governments in Great Britain. We consider such things carefully, because those of us who are committed to devolution, and even to making progress with the devolution settlement, would like the relationship between Westminster and the devolved Governments to act as a positive influence for all that we believe in.

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The Government of Wales Act 1998 in particular put in statute the idea that the National Assembly for Wales should be committed to, and give due recognition to, sustainability. It is probably one of very few national Governments in the world—probably two or three others can be found—with that statutory duty. Therefore, it seems particularly inappropriate that the word “must” should be used in the clause. It seems beyond belief that the National Assembly for Wales would not want to play its part in promoting, conserving and enhancing biodiversity.

Perhaps the amendment is not absolutely right and the word “may” is not quite the right choice. The word “should” might be preferable. Perhaps the clause should use a form of words such as “The Secretary of State should encourage”. However, I consider the word “must” to be particularly inappropriate. I should like the Minister’s assurance that he will consult the National Assembly for Wales on this aspect of the Bill, and perhaps one or two others, to ensure that the wording is conducive to the formation of that constructive partnership that will serve not only the devolved nations but the whole of the United Kingdom.

12 noon

Jim Knight: In debating earlier clauses, I have sketched out what clause 42 is designed to do. Amendments Nos. 77 to 80 would significantly weaken the duties in Wales by changing “must” to “may” in four instances, although I accept that the hon. Gentleman said he is not sure it would be right to use “may”. The amendments would effectively change the duty to a power, and we want to continue with the existing position as introduced in the Countryside and Rights of Way Act 2000.

The Welsh Assembly Government already have the duty in question under the 2000 Act, and any change would be detrimental to biodiversity conservation. The listing process ensures that species and habitats of particular importance are highlighted so that their protection will be prioritised. I am sure that it is not the hon. Gentleman’s intention to weaken the activity of the Welsh Assembly Government in that regard. The presence of these lists will be even more important in future, because all public bodies will have a duty to have regard to the conservation of biodiversity. The list will be an important source of information and help them to prioritise.

I assure the hon. Gentleman that we have consulted our devolved colleagues in the Welsh Assembly Government who are happy that they must consult the Countryside Council for Wales on the list and take such steps as appear to the Assembly to be reasonably practicable for the conservation of living organisms and habitat types on the list. On the basis that we have consulted and will continue to consult colleagues in Wales on all aspects of the Bill, I trust that the hon. Gentleman will withdraw his amendment.

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Mr. Williams: On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clause 43

Possession of pesticides harmful to wildlife

Mr. Paice: I beg to move amendment

No. 144, in clause 43, page 15, line 21, at end insert

    ‘with the intention of committing any offence under Part 1 of the Wildlife and Countryside Act 1981 (c. 69), the Conservation of Seals Act 1970 (c. 30), the Deer Act 1991 (c. 54) or the Protection of Badgers Act 1992 (c. 51)’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 63, in clause 43, page 15, line 26, after ‘was’, insert

    ‘or had been in the past’.

No. 64, in clause 43, page 16, line 2, at end insert—

    ‘(7A)   An order made under subsection (1) shall come into force on such date as may be prescribed by the Secretary of State being not less than six months from the date on which it is made.’.

Mr. Paice: I make it absolutely clear that the Opposition condemn anybody who uses poison to kill birds of any species. I wholly support the Government’s objective in tabling the next few clauses. As an aside—this will come up again later—I am slightly concerned that the Government did not consult on the provisions before including them to ensure that they got them right. There was some discussion, but it was not a consultation. The reason why I am concerned, as I am about clause 46 and the protection of nests, is that I am not sure that the proposals will address the problem that I readily accept exists.

It is already an offence to set poison for a bird and has been for 24 years. It is also already an offence to possess a large number of pesticides that have been banned in preceding years. In particular, carbofuran has been most commonly used for poisoning birds of prey. Although the problem is not restricted to birds of prey, their protection is the principal objective of the clause. In 2003, which is the latest year for which I could obtain figures, carbofuran was used in 35 of the 58 incidents across the UK. It is already an offence to possess it, so the clause is not necessary to deal with the pesticide.

If we narrow the focus to England and Wales, which is what the Bill applies to, we see that carbofuran was used in three of the eight cases in England and two of the seven in Wales. On top of that, two other pesticides—mevinphos and alphachloralose—have also been withdrawn from the market, so it is also an offence to possess them. They account for another five of the 15 cases in England and Wales. If we take out the pesticides that have already been banned, we can narrow down the problem considerably.

The Royal Society for the Protection of Birds says in its report on bird crime in 2003, from which I have obtained all these statistics:

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    “We are concerned that withdrawing pesticides that are most frequently abused one at a time has not solved the problem. Instead alternative products have been found.”

It means by that that it supports this proposal which would, effectively, ban any pesticide that an individual has no good reason for possessing. However, I believe that the phrase

    “Instead, alternative products have been found”

demonstrates the big loophole in the legislation, in that those who want to poison raptors or other birds of prey will continue to find means of doing so. A large number of toxic pesticides will still be available, and people will have no difficulty in convincing courts that they are legally entitled to have them. For example, phostoxin is used for rabbits; warfarin and other anticoagulants and all sorts of other chemicals are used against rats and mice; and strychnine is used against moles. That is without even considering traditional agricultural pesticides such as insecticides. One that is commonly referred to is temic. I am not aware that there has ever been a case of the poisoning of a rat or a bird of prey with temic, but I readily accept that that is possible, because it is a noxious pesticide. However, temic is legal, and is approved for use on potatoes. Therein, again, lies for me the problem with this approach. Anybody who has some temic, even if his intention is malign, has only to say that he got it for his mate because he grows potatoes in his allotment and that he therefore has a justification for possessing it. It is not that I do not support the objective, but I have a fundamental problem believing that the legislation will make a jot of difference. It is legislating on the “something must be done” principle rather than because it will make any difference.

There is already a mass of legislation that deals with this sort of thing. The RSPB document refers to the fact that people have been prosecuted for the illegal storage and use of pesticides—beyond the issue of poisoning of birds, there is the matter of illegal storage. People are already being prosecuted for other offences under the Food and Environmental Protection Act 1985. Having spent three years as shadow spokesman on police and crime, and having sat in this and other Committee Rooms dealing with criminal legislation, I am averse to the idea that we need more laws and to ban this and that. It is a bit like antisocial behaviour: we keep making more individual bits of behaviour illegal, without addressing the fundamental issue.

I do not want to digress, and I know that you will not allow me to do so, Mr. Forth, but that is the problem that I want to turn to now, and I hope that you will let me make a couple of points on the issue that clause 43 seeks to address. It will be mirrored when we come to clause 46 and the matter of nests.

I am the first to accept that there is a problem with the public image of gamekeepers, either because of Lady Chatterley’s Mellors—perhaps that is an unfortunate word for some of us who have been in this House for a few years—

Mr. Robert Goodwill (Scarborough and Whitby) (Con): Will that go in Hansard?

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Mr. Paice: “Don’t print that,” as they say.

More to the point is the image of the old-fashioned gamekeeper’s gibbet, with pests and vermin hanging on barbed wire and things like that. Of course, there is also the image that grouse moors are the preserve of the very wealthy and rich. Yes, they are. Few people can afford to go shooting grouse, and I am not one of them. Nevertheless, as my hon. Friend the Member for Scarborough and Whitby (Mr. Goodwill) will vouchsafe from his constituency, it is terribly important economically in such areas. There is ample evidence that the prosperity of some rural communities goes hand in hand with the prosperity of the shooting community, particularly where grouse moors are concerned.

Mr. Peter Atkinson (Hexham) (Con): My constituency contains the best grouse moors in England. In the remote parts of the north Pennines, the Allen valleys, they contribute about £3 million a year to the local economy, and that is a huge amount and is of huge importance.

The Chairman: Order. I am hoping that the hon. Member for South-East Cambridgeshire will persuade me fairly quickly of the connection between grouse moors and clause 43. I urge him to do that quickly or to move on.

Mr. Paice: I am happy to do so, and I appreciate that there are not too many grouse moors in your constituency, Mr. Forth. Nevertheless there is a widespread perception—and evidence from the RSPB’s papers—that many incidences of poisoning of birds of prey are taking place on grouse moors. That is the clear connection.

What I have described may be the public image, but the reality—apart from the economic issues, which I am grateful to my hon. Friend for endorsing—is that the issue of wildlife relates more strongly to this section of the Bill. There is ample evidence that keepered moors are more beneficial for the overall panoply of wildlife than unkeepered moors.

Moors that are managed for grouse typically have a wader population—golden plovers, lapwings and curlews—of up to five times the population of unkeepered moors. Part of that is the control of ground vermin, particularly foxes and crows, which persecute such birds, particularly ground-nesting birds. If we look at the north Pennines area of special protection, we find that curlews are 18 times more prevalent than in the Berwyn mountains in Wales, which are run as a reserve. The merlin, which is the subject of an amendment in this group, is twice as common on managed moors as unmanaged moorland.

All those other birds—of course, the merlin is a bird of prey—benefit from the management of a grouse moor. Nowhere was that emphasised more clearly than in the Langholm study carried out in the 1990s on grouse moors in Dumfriesshire. It clearly showed the effect of the prevalence of the hen harrier, which is one of the most sensitive birds and the victim of a number of such offences in the past. When the hen harrier population rose alongside the grouse population until the tipping point and then got so high that it began to
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damage the grouse population, the viability of the moor diminished and the owners had to withdraw the gamekeepers as they could no longer justify them. Immediately, of course, the other predators came back on the scene and the population of hen harriers crashed. It is now down to two or three pairs on that moor; there were several times that number.

I use that point to illustrate that such factors all work together. The real solution, and I apologise if I have been tempting providence, Mr. Forth, is that we have to persuade the people who carrying out such poisonings—I accept that it is going on—that there is a better way of resolving the fundamental issue, which is seen as a conflict, although I do not believe that it is. I would like to see much more of a rapprochement between those involved in managing such areas.

12.15 pm

I happen to think that we need to examine the concept of relocation when numbers of raptors in certain areas get above a level that is sustainable alongside all the sporting activities. I shall now turn, I am sure with your gratitude, Mr. Forth, to the individual amendments in the group, but I just wanted to set the wider context of my thoughts and concerns.

Amendment No. 144 would require the proof of intent. I am concerned, as hon. Members often are, when we seek in the House of Commons to reverse the burden of proof. I know that we have said in other legislation, “You are guilty unless you can prove your innocence”, or in other words we have told people that unless they can prove that they have a good reason for having something we will assume that they are guilty. I believe that that is a fundamental breach of the traditional way that we deal with criminal law. As I say, this is not the first time that it has been mooted—it has happened before—but each time it is another step towards a wholly different approach to criminal law, which we have traditionally rejected in this country. However, that is clearly what clause 43 says when it specifies:

    “A person is guilty of an offence if he has in his possession a pesticide”—

and so on.

Later on, some defences are laid down, but the onus will be clearly on the individual to prove that he had just cause to have this particular pesticide or else it will be deemed that he had it for a malign purpose or criminal activity. That is wrong, which is why there should be an attempt to prove intent in the clause. I have already explained why the clause is unlikely to produce the results that we want: a reduction in bird poisoning incidents. I am not convinced that the clause will have that result and with respect to civil liberties and the right way to address criminal law, the obligation to show intent should be included.

Amendment No. 63 would insert into subsection (3), where a person is able to prove

    “that his possession of the pesticide was for the purposes of doing anything in accordance with”,

and so on, a need to reflect that it is easy to accumulate old pesticides and a few cans or tubes of something in the shed. I suspect that any Committee member who is a gardener is conscious of this. The amendment would
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put into the clause a defence that something had been used in the past for one of the purposes of doing anything in accordance with the legislation. It is a perfectly reasonable position to adopt simply to say, “I’ve got some left over. I’ve had it a few years because I used to use it for X, Y or Z.”

Obviously, if it is illegal to possess that pesticide under other legislation, such as the Food and Environment Protection Act 1985 or other regulations, it is illegal to possess it: it is an offence. We know that, but I am concerned about the many other pesticides that are legal to possess in cases where, being reasonable, the person may have had a reason for having them in the past rather than the present.

Amendment No. 64 would introduce a six-month delay in the commencement in order to provide time for the knowledge and information to be satisfactorily put out and publicised, in what would be very remote areas, among the communities where such problems arise, to ensure that people know that the law has now changed, to whatever extent it ends up being changed. That will also give them time to dispose of whatever they have that they may wish to dispose of. Of course, we do not want people simply to put it in a dustbin or pour it in a ditch because of its nature. They will have to comply with environmental legislation when disposing of unwanted pesticides. It is perfectly reasonable—I understand from conversations that it would be acceptable to some of the outside bodies involved—to build in a delay before the offence comes into force in order to give people time to deal with whatever they may have in their possession.

The three amendments are designed simply to improve the quality of the legislation. Some of the other groups that I shall refer to in relation to this and other matters are also there purely to try to improve the quality of the legislation, as we are all required to do. That is the purpose of Committee scrutiny. However, at the same time, I have serious reservations about whether clauses 43 and 44 will achieve the results that the RSPB, the Minister, the vast majority of the sporting community and I want.

None of us wants people to poison birds of prey, particularly those that are rare. It is even dafter to poison birds of prey such as the red kite, which is the subject of a massive release and breeding programme. We have recently successfully reintroduced it into this country and it is a delight to see. It is not a problem. It feeds off carrion. Poisoning it is clearly daft, but sadly some people see fit to do so. As I said when introducing my remarks, I wholly condemn them and they need to be prosecuted, but I am not convinced that this provision will achieve that. If we are going to include it, it needs some amendments.

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