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Lord Pearson of Rannoch: My Lords, I am grateful to hear from my noble friend that he intends to bring forward some further modification to the clause on Third Reading. The point that I put to him still stands. Although it is helpful to have the new paragraph (c) which my noble friend inserted in Committee, that the commission can only use the immediate powers of the clause when:

that does not get round the problem which I have raised of the commission saying that it does not have time to use the powers in Clause 5.

I appreciate that it is difficult to define "marauding"; but we have a number of definitions in the Bill, one of which attempts the definition of the "natural heritage". If we can have a definition of "natural heritage" on the face of the Bill, I should have thought that we would be able to have a definition of the word "maraud".

As to Amendment No. 21, I have taken out the words that suggest the authorisation could mention almost any land, because that seems to allow the commission to authorise the deer to be killed where they are. In that case, we must be sure that they are marauding, and that they cannot be killed where they are normally established. What my noble friend has been saying is helpful and hopeful. I therefore hope that when we have our discussion we may be able to discuss what he is thinking of bringing forward on Third Reading. In the meantime, I have much pleasure in withdrawing the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Lord Pearson of Rannoch moved Amendment No. 20:

Page 3, line 29, leave out ("the natural heritage generally") and insert ("enclosed land of natural heritage value").

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The noble Lord said: My Lords, this group of amendments may well also become redundant in the light of what my noble friend the Minister has just said. They are an attempt to define the natural heritage within the powers of Clause 4, because although the interests which Clause 4 has been able to protect since 1959 are easy to understand--woodland, agricultural production, including any crops or foodstuffs, and injury to livestock, and so on--the definition of "natural heritage" is much more difficult to understand.

There is in the Bill now an acceptable definition of "woodland", and most of what we are talking about, certainly in the Highlands of Scotland, under the heading of natural heritage would be covered by "woodland".

It was after my noble friend the Minister was good enough to spare me a few minutes for a meeting since our Committee proceedings that I thought the definition of "natural heritage" could be more precise as to exactly what Clause 4 is aiming at. Therefore where we are invited to give the commission power over the "natural heritage generally", I have suggested:

    "enclosed land of natural heritage value".
That would not be land which was necessarily enclosed against deer; it would be natural heritage which was enclosed for any purpose. However, as I say, if we can get the concept of marauding deer clearly understood within the terms of Clause 4, then these amendments become less important. I should like to hear what my noble friend has to say. I beg to move.

The Earl of Lindsay: My Lords, I can give my noble friend a simple and short answer. It is my hope that the amendment to Clause 4 that we shall bring forward on Third Reading may well satisfy his anxieties in this area. There may well be pressures on the natural heritage outwith an enclosed area. One thinks of grouse moors, and areas which are beyond the normal fringes of deer areas; but, because of specific weather conditions, large plantings, or enclosures, the deer are pushed into areas where they do not normally roam. In such circumstances, it will be important to protect something in an emergency, even if it was not fenced because it was not normally part of a deer range.

I assure my noble friend that at the heart of Clause 4 is a proper definition of when the powers can be used. It is something that I hope to be able to deliver to noble Lords on Third Reading. I shall give my noble friend good notice of how we intend to draft the amendment.

Lord Carmichael of Kelvingrove: My Lords, before the Minister sits down, perhaps I may raise a point with him that was raised in Committee. It is the question of the erection of fences. We are aware that different interests are involved. I have a brief from the RSPB. I was surprised to see that the annual mortality rate of capercaillie killed by collisions was 32 per cent. That indicates that the fencing about which we are talking is a major cause of death. Forestry Commission research information has shown that where deer culling can be sustained in sufficient intensities and over sufficiently wide areas, it is possible to establish native pinewood without deer fencing. The Minister has offered to look

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at this whole question and I hope that he will take cognisance of the mortality rate of some birds, particularly capercaillie, in relation to fencing.

7.30 p.m.

Earl Peel: My Lords, with regard to the statistic of 32 per cent., I believe that the mortalities have reduced considerably because the fencing has been modified and the position of the fencing has been changed. I still believe that the figures are relatively high, but not as high as those which the noble Lord is suggesting.

Viscount Massereene and Ferrard: My Lords, when the plantations mature, the Forestry Commission allows the fencing to fall down. The deer, naturally being forest animals, come into the forest, where they are promptly shot in large quantities by the Forestry Commission. In other words, it is shooting its neighbours' deer.

The Earl of Lindsay: My Lords, my noble friend Lord Courtown is on the verge of giving us a lecture about when one can and cannot speak on Report. He knows a great deal more about that than I do.

All the points made by noble Lords about fences and capercaillie are taken on board. Our view is that it is not for Ministers, the Deer Commission or any other public agency to be prescriptive about where there should or should not be fences. Circumstances and conditions vary considerably in different areas. I understand that in some areas unfenced projects make a lot of sense, whereas in other areas fencing is required. However, as my noble friend Lord Peel implied, one needs the right sort of fencing to avoid mortalities. As I said, all the points made by noble Lords will be taken on board.

Lord Pearson of Rannoch: My Lords, I apologise to the House. It was probably my fault that the batting order got confused because I offered to withdraw from the wicket before a number of other more skilful batsmen had had their turn.

I am most grateful for what my noble friend said. All I can do at the moment is to await the outcome of what he is able to do about "marauding" and the "natural heritage" and the immediacy of the powers in Clause 4. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

The Earl of Lindsay moved Amendment No. 22:

Page 4, line 5, after ("instead") insert ("take and").

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 23, 27, 31, 32, 38 to 41, 49, 58, 61 to 70, 72, 73 and 76 to 78.

Noble Lords may recall that we are preparing a consolidation Bill in parallel with the programme Bill. Consolidation of all the existing legislation will undoubtedly make it more user friendly for deer managers and others who have to deal with the law on a regular basis, not least your Lordships.

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In a strict consolidation exercise, the draftsman is limited in what he can do. He can modernise terms, correct obvious errors and improve layout, but he must adhere to the substance of the law as it stands. If the law is unsatisfactory or open to substantial doubt, the draftsman may simply have to reproduce those inadequacies or doubts in the consolidated Act.

The main reason for proceeding with the consolidation exercise in parallel with the programme Bill is that substantial amendments to clarify the law can be incorporated in the programme Bill and then consolidated. So far, the amendments I have proposed that have arisen from the consolidation process have all been relatively minor.

There is, however, one area of substantial doubt and uncertainty in the present legislation which has been brought to my attention. We can now take the opportunity to clear this up. This will, however, go beyond the scope of what is allowed on consolidation and will involve amendments in the programme Bill to clarify the law based on the Government's policy.

The difficulty centres around the use of the word "take" which appears throughout the legislation usually in the phrase "take or kill". It may seem obvious at first reading that the term "take" offers some alternative to killing; for example, the taking of deer alive. However, when one looks in detail at the Act, this is not always so as the law stands at present.

However, we know that from time to time persons who have the right to kill deer take the deer alive instead, usually with a view to selling the deer on. In terms of our policy, provided the animals are humanely treated, there seems to be no reason to object to this. The effect as regards, for example, damage to crops is the same--the deer are removed and prevented from causing further damage.

Moreover, we know that the courts have interpreted the term "take" as meaning "take alive" with particular reference to Section 22 which deals with poaching. Under the circumstances, it is clear we will lose something from the legislation if we simply delete all uses of the word "take".

I am therefore proposing that we standardise the language across the Act. In general, we will refer to rights to "take of kill" and taking will mean "taking alive". This will be consistent with the interpretation of the courts and with current practice. I beg to move.

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