Natural Environment and Rural Communities Bill

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Mr. Paice: The debate has been presaged by earlier debates. Amendment No. 115 would introduce wording about qualifications again, and amendments Nos. 117 and 118 would require the inspector to have reasonable grounds to enter and inspect any premises. The argument that I made earlier remains, because schedule 5 involves huge change to the Wildlife and Countryside Act 1981 as it applies to wildlife inspectors, all the different offences, the examination of specimens, the taking of samples, the powers of constables and the powers of wildlife inspectors, as extended to other Acts. It is a massive schedule, which will change a lot. I accept the Minister’s comments about my earlier point on qualifications, when he said that it could be open to legal challenge if an inspector was not appropriately qualified. Nevertheless, there is an important point at stake—namely, that someone needs to have confidence that the inspector knows what he is doing. The Minister made the same argument as the hon. Member for Bridgend, who spoke from her own experience, which is that the qualification is effectively a combination of experience, knowledge and background.

Despite having been an Education Minister, I certainly do not believe that a piece of paper automatically proves that someone is qualified. Background, knowledge and experience are just as, if not more, valuable. My interpretation of the word “qualification” would not be so narrow as to mean a particular piece of paper—a certificate or whatever—but would refer to the broader context of the word. It would not refer to someone who did not know very much about the subject.

As for the “reasonable grounds” amendments—that is, amendments Nos. 117 and 118—my arguments stand. In the schedule, under the group 1 offences in proposed new section 18B and the group 2 offences under proposed new section 18D, the inspector cannot enter and inspect premises unless he has a reasonable suspicion that a crime is being or has been committed. It clearly states that a purpose of entering is to ascertain

    “whether a Group 1 offence is being or has been committed”.

That takes us back to fishing expeditions, to which the Minister referred. If we are to prevent fishing expeditions, something needs to be included to ensure that justification is necessary before people use the powers. I look forward to the Minister’s reflections on that, alongside the reflections that he promised earlier.

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Amendment No. 116 relates to the Police and Criminal Evidence Act 1984, which we have discussed. The Minister promised to write to the Committee regarding the role of the inspectors as far as pesticides are concerned. Obviously, that is in a different context, but the same argument applies. The amendment would add the stipulation that

    “A wildlife inspector exercising powers under this or any enactment shall comply with any Code of Practice issued under sections 60 and 66 of the Police and Criminal Evidence Act 1984.”

That is a perfectly reasonable position to adopt. We are talking about evidence, including all sorts of things like the collection and examination of specimens and taking samples. These are clearly issues about evidence that may be used in a criminal prosecution. I do not understand how those functions can be carried out other than in the context of PACE.

I listened with interest to the experiences of the hon. Member for Bridgend, who said that when she was wearing one hat she would sometimes use PACE, but that when she was wearing another she would not. She would momentarily stop and change hats and say, “Now I’ll start using PACE.” That is a recipe for confusion, particularly among people who are to be inspected or investigated under the Bill. It would be clearer if, up front, everything was done under the auspices of PACE. If the Minister decides that the best way to deal with the problem—as well as the problem of the other aspect of the involvement of PACE—is to address it in correspondence, I shall be content. However, there is a case to be answered as to how an inspector can operate and gather evidence that may be used in a criminal prosecution, and how he can ensure that it is not disallowed in that prosecution, other than by following a code of practice under PACE.

All four amendments are appropriate. They are, to a degree, a rerun of previous amendments, but I look forward to the Minister’s response.

Jim Knight: I will do the best I can to help the hon. Gentleman. If I fail, we will go down the other route of correspondence, but I will do what I can now to satisfy him.

Amendments Nos. 115 to 118 would amend schedule 5, which enhances enforcement powers in relation to wildlife. The amendments attempt to restrict unnecessarily the appointment and operation of wildlife inspectors. Amendment No. 115 would insert a new subsection to restrict who can be authorised by the Secretary of State as a wildlife inspector to those who hold such qualifications as the Secretary of State may prescribe.

All wildlife inspectors receive appropriate training to ensure that they can carry out their duties in a professional and effective manner. It may help the Committee to know that the formal training for wildlife inspectors includes enforcement of the Police and Criminal Evidence Act 1984, the wildlife incident investigation scheme, and the licensing of piscivorous birds, European protected species, badgers, non-piscivorous birds, and other mammals such as rabbits and deer. All licensing training includes study of the biology and behaviour of species, of legislation relating to species, and of licensing procedures
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according to the agreed working instructions. As part of their continued professional development, all wildlife inspectors have the opportunity to attend other training courses within DEFRA and externally.

Wildlife inspectors might not have formal qualifications on paper, but DEFRA does everything it can to ensure that their work is of the high quality required of them in order to sustain their good reputation. The amendment would do nothing to increase the competence of wildlife inspectors beyond that which I have described, and I respectfully request that it be withdrawn.

Amendment No. 116 would introduce a new subsection requiring wildlife inspectors to comply with the codes of practice issued under PACE. If there is a legal obligation for them to have regard to the codes under PACE, they will, of course, do so, but they do not conduct criminal investigations and the codes do not apply. The amendment would add nothing to their obligations under PACE.

In an attempt to be helpful and to add a little more clarity—or complexity, depending on how one views it—I shall briefly answer three questions. Do inspectors comply with the codes? Where the role of a wildlife inspector relates to the investigation of offences, and section 67(9) of PACE applies—I am sure that we are all familiar with that—he or she will comply with the codes of practice.

Is failure to comply with the codes of practice an offence? No, under section 67(10)(b) of PACE a failure on the part of

    “any person other than a police officer who is charged with the duty of investigating offences or charging offenders to have regard to any relevant provision of . . . a code in the discharge of that duty, shall not of itself render him liable to any criminal or civil proceedings.”

What training will wildlife inspectors receive on PACE? As I have said, they will receive training to ensure that they are familiar with its requirements and the codes of practices.

Mr. Paice: I am still genuinely puzzled. According to the schedule, inspectors will carry out investigations that, although not criminal investigations, may be part of prosecutions. They will examine specimens, take samples and so on, and will, at least, be expected to give evidence on that, and it is highly likely that they will be expected to produce the specimens or samples. It is unclear whether, if they have not been collected and gathered under PACE, there might not be at least an excuse for legal challenge by the defendant or his lawyers or, at worst, that the evidence might be non-admissible because it has not been gathered under PACE. That is my confusion, and I hope that the Minister can clear it up.

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Mr. Knight: I cannot promise to do so. However, if it helps, section 67(9) of PACE requires that persons other than police officers who are charged with the duty of investigating offences or charging offenders shall, in the discharge of that duty, have regard to any
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relevant provision of a code. Therefore, if they are investigating offences or charging offenders, they must have due regard to the code. There might be implications if they are accompanying a constable at the constable’s invitation when entering premises. It is important for the Committee to recognise that inspectors undertake activities that are not related to offences, in which cases the code does not apply. That is where the confusion might lie for any or all of us, and that is about as far as I can go in attempting to clarify things for the hon. Gentleman. The letter that I write to the Committee to explain the difference between the functions of an inspector and those of a constable might help to clarify the issue as well.

Amendments Nos. 117 and 118 both introduce a requirement for a wildlife inspector to have reasonable grounds to suspect an offence before exercising powers to enter and inspect premises, and as they are similar I shall deal with them together. Wildlife inspectors have never needed reasonable suspicion of an offence before exercising their enforcement provisions under the 1981 Act. Enhanced powers for authorised wildlife inspectors are available for a number of purposes, including ensuring that licence conditions are being complied with and verifying statements that are made in the context of licence applications. Those are some of the activities that are referred to that are not part of investigating offences.

The circumstances of those inspections differ from those in which an offence is suspected. Such compliance visits ensure the integrity and enhance the credibility of the licensing system, and there is no requirement for inspectors to have reasonable suspicion to enter land in that regard. That is consistent with the wording of the 1981 Act, which is working well, and we see no reason to change it. I therefore ask that the amendment be withdrawn.

Mr. Paice: I am grateful to the Minister for at least some of his responses. For my benefit, if not for that of other Committee members, he still needs to clarify the points that we have raised concerning PACE. I shall not rehearse them again. On qualifications, I hear the Minister’s entreaty to believe that only the very best people will be taken, and I hope that he is right; that is a minor issue. I am less persuaded on the issue of reasonable grounds. On reflection, I understand his point that one should not have to have reasonable suspicion simply to go and verify a statement or, as he said, to check on licence conditions. However, if one is ascertaining whether a group 1 or group 2 offence is being or has been committed, under proposed new section 18B(1)(a), then it must be appropriate to have reasonable grounds for suspicion.

There is no point in pursuing the amendment, because I accept that it is defective in that it refers to all the non-investigative activities. However, I hope that the Minister will be sympathetic to the point that I am trying to make. To use his expression, the provisions for ascertaining whether an offence is being or has been committed should contain some constraint to prevent fishing expeditions.

Jim Knight indicated assent.

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Mr. Paice: The Minister is nodding. I shall take that to mean that he understands the point that I am making and will reflect on it, as he undertook to do earlier when we did the same thing. For the record, he has accepted that that is the case, and so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jim Knight: I beg to move amendment No. 147, in page 55, leave out lines 12 and 13.

The Chairman: With this it will be convenient to discuss the following:

Government amendment No. 140, in page 57, line 19, at end insert—

    ‘(   )   After subsection (2) insert—

    “(2A)   A constable may, for the purpose of assisting him in exercising the powers conferred by subsection (1)(b) and (d) when he has entered any land under subsection (2), take with him—

      (a)   any other person, and

      (b)   any equipment or materials.”.’.

Government amendments Nos. 141, 148 and 149.

Jim Knight: I must begin by apologising to the Committee, because there appears to be a printing error on the amendment paper. In proposed new subsection (2A) in amendment No. 140, the word “land” should be “premises”. I apologise for that oversight, which came to my attention during this afternoon’s sitting. I hope that the Committee understands that.

Mr. Paice: On a point of order, Mrs. Anderson. Can you clarify the legitimacy of the issue? I am not picking holes in the Minister’s point, but we are effectively dealing with a manuscript amendment, because it is substantively different. I am not clear whether the Committee could accept the Minister’s amendment, given that he has indicated quite a significant change to that we were advised on.

The Chairman: I am allowing the Minister to move the amendment in the amended form, and I hope that the Committee will agree with that.

Jim Knight: Thank you, Mrs. Anderson.

Amendments Nos. 140 and 141 relate to the powers of constables in the enforcement provisions in schedule 5. Amendments Nos. 147 to 149 relate to the definition of premises in schedules 5 and 11.

As amendments Nos. 140 and 141 deal with the same issue, I will address them together. The new wording will put in place clear safeguards for access to dwellings, to close a potential loophole that has been identified following the publication of the Bill. Under the amendment, constables acting under warrant will be able to take accompanying people with them only when authorised by the warrant. It will ensure judicial oversight where a constable may be entering dwellings in order to investigate offences under the 1981 Act, to ensure a robust enforcement of the legislation without jeopardising the rights of individuals.

To turn to amendments Nos. 147 to 149, a drafting oversight has meant that the Bill would put the full definition of the word “premises” in a potentially confusing place in the 1981 Act: in the enforcement
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provisions, rather than in the interpretation section of part 1. When the Bill was drafted, it was not appreciated that the new definition of premises would also have an effect on section 6(3) of the Act, which contains offences to do with showing live wild birds at competitions. We believe that the proposed definition should apply to that section. We do not believe that that would change the extent of section 6(3). Therefore, the drafting should be amended to avoid any confusion. The amendment removes the references to the definition of premises and inserts a full definition into the interpretation section of part 1, namely section 27. I am sure that that is clear to the Committee, and that the amendment will be agreed to.

Amendment agreed to.

Amendments made: No. 140, in page 57, line 19, at end insert—

    ‘(   )   After subsection (2) insert—

    “(2A)   A constable may, for the purpose of assisting him in exercising the powers conferred by subsection (1)(b) and (d) when he has entered any premises under subsection (2), take with him—

      (a)   any other person, and

      (b)   any equipment or materials.”.’.

No. 141, in page 57, line 21, leave out sub-paragraph (4).

No. 148, in page 59, line 3, leave out from beginning to second ‘in’ in line 6 and insert—

          ‘In section 27 (interpretation of Part 1), in subsection (1),’.

John Mann: I beg to move amendment No. 145, in schedule 5, page 60, line 22, at end add—


      (1) Section 19(3) of the Wildlife and Countryside Act 1981 (c. 69) applies for the purposes of the provisions specified in this paragraph as if the reference to reasonable grounds for suspecting that an offence under Part 1 of the 1981 Act has been committed were a reference to reasonable grounds for suspecting that an offence under the specified provisions has been, is being or is about to be committed.

      (2)   The provisions specified in this paragraph are—

        (a)   Part 3 of this Act,

      (b)   Part 1 of the Wildlife and Countryside Act 1981 (c. 69),

      (c)   the Protection of Badgers Act 1992 (c. 51), and

      (d)   such other provisions as the Secretary of State may specify by order.

    (3)   Orders made by the Secretary of State under sub-paragraph (2)(d) are subject to annulment in pursuance of a resolution of either House of Parliament.

    (4)   The Secretary of State may not make an order under sub-paragraph (2)(d) unless he is satisfied that it is necessary or expedient to do so in the interests of protecting wild birds or wild animals.’.

I do not intend to delay the Committee for too long, but I present for its edification and that of the Minister what I call the bird and bat amendment. Members will be aware that my constituents are keen on birds and bats, and particularly unkeen when developers uproot trees and bushes in which birds and bats may be nesting. Some developers suggest, always informally and off the record, that the best way to deal with things such as trees is to get them chopped down quickly before anyone says that they should not be chopped down and before a preservation order can be put on them. If a developer is witnessed and caught chopping
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down trees in which bats and birds are nesting, at some stage a wildlife crime officer from the police might attempt to prosecute the developer.

Of course a developer who chooses so to act knowingly may not inform the local residents of his intention to chop down the trees. In constituencies such as mine, one day a group of trees and bushes will be standing there, with birds nesting and bats flying around in the dusk, much to the edification of my constituents, but the next day said trees and bushes have been uprooted, chopped down and burnt, and the wildlife has disappeared.

What should one do if one suspects that a developer is about to act in such a way? Dialling 999 and suggesting to the police that they should appear in order to witness a crime against bats and birds that has not been committed is unlikely to get a positive response. However, if the bats are roosting in a barn, things are rather easier. Because the barn is covered by various planning Acts, one can inform the planning enforcement officer about the bats, and if there is a fear that the barn is to be demolished, the planning enforcement officer can act.

Therefore, there is a slight imbalance in the law. It has been raised quite vocally by a large number of my constituents, who have been upset by the actions of developers and others who have removed trees in which there have been bats and nesting birds. They have found that there is no remedy in law. I have no idea whether the Minister thinks that the amendment will precisely address the point, but it might. I would therefore be interested to hear his view on that and whether he could suggest an alternative remedy to deal with a major loophole about which my constituents implore him to do something.

Mr. David Chaytor (Bury, North) (Lab): I support the comments of my hon. Friend who has forcefully described the importance of speed in certain instances of wildlife crime. I endorse his remarks. The amendment provides a minor, but significant improvement to the powers of the police. I should also like to identify one or two anomalies to highlight the importance of the amendment.

The powers given to wildlife inspectors, as described in schedule 5 and clause 44, are greater than the extended powers that we are proposing for constables.

6.30 pm

Existing powers enable constables to enter land if they have reasonable suspicion that an offence has been, or is being, committed. However, the key point is that in many circumstances—my hon. Friend has described a small number of them—wildlife crime could involve the theft of eggs from the nests of protected species, badger baiting or many other examples of offences that might not yet have been committed or be in the process of being committed, but there could be overwhelming evidence to make a constable suspect that they were about to be
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committed. That seems a powerful argument for extending constables’ powers to enter land in those circumstances.

My second point does not pre-empt the debate on part 6 of the Bill about motorised vehicles on rural roads. However, as things stand, in cases of offences committed in remote rural areas, constables with motorised vehicles might have access to tracks and bridal paths that would enable them to collect evidence that an offence was about to be committed. They might be observing people acting suspiciously, who might have all the tools of the trade for stealing rare eggs, badger baiting or whatever else. Now, the constables would not be able to enter the land adjacent to such tracks and carry out the necessary arrest or conduct their inquiries.

I understand that there may be some resistance to the amendment on the part of those who think it an infringement of the individual landowner’s liberty. Again, I refer back to the earlier debate, in which the Opposition said from time to time that the powers given were too intensive, and that that step represented an infringement of liberty and was tilting the balance a little too far.

It seems to me that many landowners would welcome the powers. Not all landowners are in favour of the kind of offence that we are talking about. We should be clear that this is not an extension of powers that would inevitably or automatically impact on the freedoms, liberties or privacy of landowners—indeed, precisely the opposite. The powers would in many cases be supported by landowners, who find all kinds of wildlife offences taking place on their land utterly against their will.

We are considering a reasonable and comparatively minor extension of constables’ powers. It would not extend their powers in any way beyond those that wildlife inspectors have at the moment, and many landowners would welcome it because it would increase the ability to conduct inquiries or arrest people committing wildlife offences. I support the amendment and hope that the Minister will consider carefully what has been said.

Mrs. Moon: I, too, support the amendment. It seems nonsense that prior to an offence being committed, police can enter land only with the landowner’s permission, even if the crime may be well under way. The police do not have the opportunity to move in until after the act. It must be remembered that wildlife crime can take place on private land far away from a road. One should not have to stand on a hillside far away with a set of binoculars. It is ridiculous to suggest that we position officers so that they can check what is happening from far away, or that we will have to find the landowner before the officers can get on to the land if they suspect that an offence is being committed.

The destruction of trees has been a particular problem in my constituency and that of my hon. Friend the Member for Bury, North (Mr. Chaytor). Before a planning application is submitted, trees are moved, ponds are filled in and events occur that damage the habitat, thereby endangering and even killing certain species, and nothing can be done
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because the police officer cannot get hold of the landowner or gain access to the land until the offence has been committed.

I hope that the Minister will listen to the debate on the amendment and take note of it.

Jim Knight: This is an interesting bat and bird amendment, which my hon. Friend the Member for Bassetlaw (John Mann) has tabled. It would give the Secretary of State an order-making power to extend the enforcement provisions in section 19(3) of the Wildlife and Countryside Act 1981 to provisions in any Act that aims to protect wild birds or animals.

The amendment would also have the immediate effect of extending the time within which the powers available to the police under the Wildlife and Countryside Act 1981 and the Protection of Badgers Act 1992 can be used. Under the 1981 Act, for example, powers can be used only where it is suspected that a crime has been committed. As we have heard, the amendment would extend that provision to situations in which it is suspected that an offence is being, or is about to be, committed. It would also introduce new powers to cover the new pesticides offence in part 3.

The amendment proposes quite wide-ranging powers that would, in effect, allow access under warrant to all land on which an offence might be committed. We would require evidence to show what problem the new powers would address, the justification for such powers, what the consequences would be if they were not granted, and what other remedies, if any, might be available, and the number of offences each year that would be covered by the change. We would also need to assess the impact on police resources.

We do not believe that there is significant evidence to support the change proposed by the amendment. It would, for example, be difficult to prove with any certainty whether a wildlife offence was about to be committed. It would also be difficult to ascertain with any certainty the impact that the proposal would have on police resources in terms of deterring possible future offences.

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