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Lord Pearson of Rannoch: May I just say how grateful I am, as I am sure are the other members of the Committee, to my noble friend for accepting so much of the thrust of what was said in Edinburgh in this regard. This will give comfort to a lot of people on all sides of the deer debate. Would it be appropriate if I were also to remind my noble friend of the suggestion made in the committee in Edinburgh, I believe by the noble Lord, Lord Ewing, that perhaps it might be simpler if the deer commission fixed the new seasons, as he put it, "subject to an appeal to the Secretary of State"? I seem to remember that the deer commission itself would not have any difficulty with that, and it might obviate the need for orders and further parliamentary consideration and matters of that kind. I

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certainly welcome the amendment and merely leave the thought with my noble friend, that perhaps he may wish to come back to it before the next stage.

The Earl of Lindsay: The one distinct factor on which I would respond to my noble friend is that close seasons affect the criminal law across Scotland, and therefore consideration perhaps beyond the deer commission itself would be vital. But the more obvious factor is that the Red Deer Commission is the statutory adviser to the Secretary of State on deer matters, and it is inconceivable that the Secretary of State would seek to set a close season against the advice of the same deer commission.

Lady Saltoun of Abernethy: What I think the noble Lord, Lord Ewing, had in mind was that if the deer commission decided on close seasons then there would not have to be a parliamentary order and it would save parliamentary time.

The Earl of Lindsay: I am advised that it is the implications for the criminal law that necessitate the parliamentary procedure here.

On Question, amendment agreed to.

5 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 50:

After Clause 6, insert the following new clause--

Exemption for certain acts

(".--(1) Section 33(3) of the principal Act shall be amended as follows--
(a) after "grounds", the first time it appears, "or" shall be omitted;
(b) after "permanent grass" there shall be inserted "or common grazing"; and
(c) after "unenclosed land" there shall be inserted "outwith of crofting tenure)".".)

The noble Lord said: This amendment really must be taken in conjunction with Amendments Nos. 81 and 82 which I will move when the time comes. This amendment provides the opportunity for the occupier to take action against marauding deer on common grazing, but the Act apparently allows an occupier to take action against marauding deer on enclosed land. This is insufficient in the crofting counties, as deer can simply jump the fence on to the common grazing to avoid action. Thus it is very difficult for the crofter to take effective action to protect his or her land, and given the small-scale nature of crofting damaged by marauding deer, it would have a very dramatic and impoverishing effect.

However the individual crofting tenant has no remit to take independent action on the common grazing. It is the grazing committee of the council that is responsible for the management of the common grazing. This amendment expands the type of land over which crofters or grazing committees can take action to control marauding deer, and thus protect their inbye land more effectively. Yet it does not allow crofting tenants or grazing committees to take any action over land that is not under the crofting tenure, thus protecting the open

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expanses of deer forests in the Highlands and Islands. Furthermore, by allowing pre-emptive action in the common grazing it will be possible to overcome many of the difficulties surrounding public safety. In crofting townships, the scale of agricultural operations is small and concentrated around the townships. Thus it is clear that a danger to public safety can arise on such enclosed land, particularly if the shooting is done at night. By allowing pre-emptive action by grazing committees in the common grazing, which is normally distant from the township, the dangers to public safety are much diminished or actually removed. Thus it is felt that if such a provision is put in place on common grazing, it would largely eliminate the need for the introduction of Clause 7 with respect to the crofting counties requiring authorisation for night shooting. To avoid needing to take action to control marauding deer on the common grazing, it is essential to expand the definition of "occupier" to include the grazing committee or a grazing constable. I hope that the Minister will be able to give sympathetic consideration to this proposal and if necessary come back with wording that is more suitable. I beg to move.

The Earl of Lindsay: I am grateful to the noble Lord, Lord Carmichael, for explaining Amendments Nos. 81 and 82. Indeed the issues he raises are issues which we have thought very carefully about, as did the Red Deer Commission, in the consultation process prior to the Bill. We hope that in the balance we sought behind the Bill we took due account of these considerations. I understand that the amendments would introduce the concept of common grazing as a type of agriculture on which occupiers, or others, will be able to shoot out of season to prevent serious damage to crops, pasture or foodstuffs without the need for commission authorisation.

Perhaps it is appropriate for me to take this opportunity to explain what the Bill presently proposes. Our governing principle is that occupiers of agricultural land must be able to take steps to protect their agricultural investment. To that end, the Bill proposes that the set of descriptions of the type of land over which occupiers or others can take or kill out of season--that is deer--without requiring authorisation from the commission be amended. At present the expression:

    "Land laid down in permanent grass (other than moorland or unenclosed land)"

allows farmers and crofters to take action on the inbye land of their farms or crofts. Our proposed revision extends this right to allow farmers and crofters to take action to protect any land in which they have made a significant investment towards the productivity of the holding. I am content that the Bill as drafted allows sufficient protection for the investment of farmers and crofters to be safeguarded where serious damage is occurring and that as a consequence this group of amendments is not appropriate.

In addition, if the land over which, for instance, a crofting community are concerned about deer damage occurring falls outside the new definition which we are proposing, I would remind the noble Lord that the Section 7 powers, as being amended by our Clause 5,

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could well be a useful avenue to managing those deer numbers. In addition, if there is a deer management group locally, it is another source of a possible solution to an over-population of deer in a particular locality. I hope that that will reassure the noble Lord.

Lord Mackie of Benshie: Can the Minister define more precisely the position of improved land? For example, if some common grazing improved the land through a natural process of cattle and other methods about which the Minister knows, and the deer come into the proper inbye land, can "hot pursuit" continue on to the common grazing to ensure that the deer are killed? If deer have been marauding in the inbye land in the permanent grass, eating the turnips--as I said before--and from there proceed on to the common grazing, which may be unimproved, can the deer be killed there?

The Earl of Lindsay: If I may start at the beginning, the definition of "improved land" requires a significant investment to have been made. A significant application of lime and fertiliser or significant efforts to regenerate through re-seeding would qualify that land as improved land. The ability to use the marauding deer power if they are on the inbye land--we are now back to the common grazing--would be subject to the entire framework of Clause 4. So there would be safeguards afforded to those who have a right to kill where the deer have come from. The person with a right to kill on the common grazing would be the first person to be asked by the commission to take action against deer that were marauding. I reiterate the formula, which must be becoming well known to noble Lords, that the marauding powers still would be unavailable if the damage was less than serious and if there were other options available for managing the deer. In most cases there are other options available for managing such deer. I hope that I have answered the points raised.

Lord Carmichael of Kelvingrove: I am grateful to the Minister again for his long explanation. He will appreciate that it was largely an interpretation. It is not the interpretation I received from some people who wrote to me less than two weeks ago. Although the Minister's interpretation is probably correct, I shall perhaps come back to the issue on Report when I have more information. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Authorisation by Commission of certain acts.]:

The Earl of Lindsay moved Amendment No. 51:

Page 6, line 32, at beginning insert ("Notwithstanding anything in any agreement between an occupier of agricultural land or of woodland and the owner thereof, but").

The noble Earl said: In moving Amendment No. 51, I shall speak also to Amendments Nos. 53, 59 and 66. The amendments all arise from the consolidation process and are necessary to clarify that action authorised by the commission should take precedence over any agreement between the owner and an occupier of land. It was the clear intention of the 1959 Act that

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action declared lawful by Section 33(3) and (4) should take precedence. By analogy the same principle should apply to action authorised by the commission.

Such action can only be taken in the case of serious damage and that does not constitute a legal right to take deer in all circumstances. It has been a working assumption of those in the field that the commission's existing authorisation powers take precedence over private agreements. The commission will still be subject to the balancing duty to take account as relevant of owners' interests in exercising its authorisation functions and should not exercise those powers in an unreasonable manner. I beg to move.

On Question, amendment agreed to.

[Amendment No. 52 not moved.]

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