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The Deputy Chairman of Committees (Lord Strabolgi): I have to inform the Committee that if Amendment No. 53 is agreed to, I cannot call Amendment No. 54.

The Earl of Lindsay moved Amendment No. 53:

Page 6, line 33, leave out from ("authorise") to second ("or") in line 34 and insert ("such an occupier").

The noble Earl said: I spoke to Amendment No. 53 when moving Amendment No. 51. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 54 to 56 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 57:

Page 6, line 37, at end insert--
("( ) there is a danger to public safety; or").

The noble Lord said: This is a probing amendment to ascertain the Minister's views on what constitutes "serious damage".

Clause 7 refers to the circumstances under which the commission can authorise the shooting or the taking of deer outwith the limits normally prescribed by legislation. In that regard, the purpose of crofting in the context of deer control in areas such as the Western Isles should not be forgotten. Although the problem of deer in such areas is often localised, where it does occur there can be considerable damage to a croft and gardens. That should be borne in mind when the definition of "serious damage" is being considered in relation to marauding deer and the authorising of the necessary action by the commission.

The scale of damage to crofts in such cases may not necessarily indicate the severe implications to such a fragile economy. What might be small-scale damage in an agricultural sense may be serious in a crofting sense where units are very much smaller. The Minister may help me and perhaps the Committee if he will go into some detail and explain what constitutes "serious damage". I beg to move.

The Earl of Lindsay: I am grateful to the noble Lord, Lord Carmichael, for explaining Amendments Nos. 57 and 58. My understanding of Amendment No. 57 is that it seeks to introduce a danger to public safety as an additional reason for authorising night shooting as a last

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measure. The problem that we have with that is the danger to public safety that night shooting presents anyway and therefore it is something about which we are not enthusiastic. We fear that in trying to sort out one public safety problem, we are simply creating a second public safety problem.

In response to the noble Lord's Amendment No. 57, we have thought long and hard about the circumstances where this might be needed and we are not convinced that there is a sufficient case for what would be a power that in itself would be something of a danger.

I completely agree with the assertions made in support of Amendment No. 58 in that the word "serious" is not something which can be applied glibly across different circumstances. The noble Lord described how the damage caused by deer could have a larger impact on a small area of inbye land compared to the same number of deer on a large agricultural unit in a different part of Scotland.

We deliberately are not seeking to prescribe too closely how serious damage is defined in such circumstances precisely because of the need to take into account the details of any particular case. We should be relying on the commission to judge the seriousness of damage in any particular event.

Lord Carmichael of Kelvingrove: I thank the Minister for his reply. I can understand the problem of making decisions on what is serious, but it cannot be very reassuring to crofters to know that the commission may make a decision. Will there be any right of appeal if the crofter feels that he has been badly dealt with? It is a matter of opinion and it is always difficult to put opinion into an Act of Parliament with people perhaps trying to guess. The commissioner may have spent the whole week looking at serious damage in other areas and he then comes to see a small garden or a small croft that may have been very badly damaged, but relative to what he has seen, the damage is very little. It is always difficult to put on the face of a Bill an open word like "serious", and I wonder whether there is any way out of it. Perhaps the Minister would like to think about it and return to the matter.

5.15 p.m.

The Earl of Lindsay: I have thought about it. I think that in the case where the commission can be shown to have come to a decision unreasonably, it will be subject to judicial review and that, of course, can be activated very quickly.

I point out to the noble Lord, Lord Carmichael, that the commission, through its composition, arrives at more than just an opinion. We always hope that it will arrive at a considered and respectable opinion. Indeed, the last 39 years of the deer commission's opinions have gone down very well, broadly speaking, in Scotland and it is remarkable what it has managed to achieve through its liaison with local interest, local initiatives and local deer management groups in the decision making process. Anyone who disagrees with an opinion of the deer commission is able to continue a dialogue with that commission explaining why he disagrees. The whole

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culture of the deer commission has been one of openness and dialogue and getting on with people at ground level.

Also, recently we have been instituting deer liaison officers so that there is access to the deer commission process beyond simply the headquarters. We would always hope that people with a deer problem, who are not initially satisfied with the deer commission's opinion, would feel able to continue discussions up to the point where they feel they should ask for a judicial review.

Lord Mackie of Benshie: The task is perfectly simple in that there are agricultural valuators who know the form. If they were called in and said the damage was serious, the commission would then listen.

The Earl of Lindsay: The valuators of Scotland will be delighted to hear that suggestion, and to know that there is yet more business coming their way. The track record to date is encouraging. We would expect the common sense and the credibility that has built up now to be a continuing hallmark of their action. It is rare that the deer commission has been accused of being unsympathetic to particular circumstances. It has also deployed its considerable influence in being able to promote both more formal and less formal solutions. We look forward to that continuing.

Lord Pearson of Rannoch: I have been growing increasingly uneasy during this debate, because it refers back to earlier points which I made about the difficulty of deciding, first, what damage is, and, secondly, what serious damage is. The difference between serious damage and damage must be in the eye of the beholder. I am not a lawyer and I am not sure that reference to judicial review would help the matter. The person undertaking the judicial review might find himself in the same difficulty. I do not know whether it is a concept which the noble Earl the Minister might like to think of over the next few days before we come to Report stage.

I am reminded of the difficulty we had over the Natural Heritage (Scotland) Bill when what had been the Nature Conservancy for Scotland had been deciding that an area of Scotland should be a site of special scientific interest on scientific grounds; and that was that--it became a site of special scientific interest, often to the detriment of the owner or the occupier of the land in question. It seems to me that we could be moving into similar waters with this Bill when we consider the difficulties of Clause 4 and the definition of natural heritage, to which we shall return.

I wonder whether we might consider some very simple and cheap mechanism, as was eventually agreed for Scottish Natural Heritage and which has proved such a success in that a small scientific advisory committee was set up under Scottish Natural Heritage which took a second guess as to whether a particular site was worthy of special interest protection or not. If there is disagreement between the occupier or the owner, from which ever direction they come, as to whether the damage is serious of not I wonder whether there should not be some second guessing mechanism which might make everyone behave more sensibly.

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When we introduced the amendments to the Natural Heritage (Scotland) Bill we were accused of being wicked landlords and attempting to foul up the functions of SNH in future. But in fact I gather there have only been two appeals to the advisory committee in the past five years, both of which have been adjudicated in favour of SNH. I am beginning to think that our difficulty is with Clause 4 and that the definitions with which we are struggling may be such that some very small form of second-guessing mechanism might be to the advantage of all sides.

The Earl of Lindsay: The definitions were not creating too many problems for the Committee, but my noble friend and I hope to meet to discuss some of the finer details in Clause 4. The extraordinary diversity of habitat throughout Scotland and the extraordinary diversity of deer throughout Scotland, mean that any statutory definition of the word "serious" would serve no-one. I have roe deer at home and not red deer, but I would be very worried if I thought that there was some glib formula set down on this matter.

The interpretation of the word "serious" in specific circumstances merely being in the eye of the beholder I regard as being as inaccurate as the noble Lord, Lord Carmichael, suggesting that it would be merely an opinion of the commission. The eye of the beholder in this case would be between nine and 12 commissioners appointed because of their knowledge and expertise in certain disciplines which are relevant to deer management, and there will be a balance of interests among those deer commissioners. The deer commission itself will also be seeking advice from the professionals whom they regard as being appropriate to a decision they have to make. It could be SNH; it could be my own agricultural department; it could be the Forestry Commission. Therefore they will have access to advice.

If the word "serious" is seen by an owner or occupier to have been misinterpreted under, for instance, a Clause 5 control scheme, he simply has to object. There has never been a control scheme in 36 years, but if there were to be one to which someone objected the Secretary of State would have to hold a public inquiry to clarify the nature of the objection. In Clause 4, once again, the safeguards which surround that process--the fact that it must be an emergency and there must be circumstances in which there are no other options, procedures or paths available to the commission to prevent serious damage--build in constraints preventing that party's interests from being abused.

I will gladly talk to my noble friend about the word "serious", but I would encourage him to read in Hansard what I have just said as to why we feel it is such a safe use of the word.

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