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Lord Pearson of Rannoch: My Lords, I merely comment on this group of amendments that the taking of a live deer is not at all the same thing as shooting it dead with a modern rifle, when one bears in mind the welfare of the deer. Deer are extremely difficult to dart into a state of unconsciousness and when they are taken in the least bit violently, until they can be enclosed in the dark, they can be very uncomfortable and distressed, to the extent that they can die of distress quite easily.

Therefore, all I would say to my noble friend is that, although I am sure that I am not able to stand up to the complexity of the draftsman and the consolidation of the

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Bill and this long string of amendments, the taking of wild deer is a matter which must be considered with great caution.

The Earl of Lindsay: My Lords, I assure my noble friend that that is the intention of our policy. The animals must be humanely treated. It may well be that other deer management procedures not unrelated to the taking of live deer will be discussed later on other amendments and I shall be able to reassure him further on that point. I commend the amendment.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 23:

Page 4, leave out lines 8 to 10 and insert--
(""(9) Where any deer has been killed or taken and removed from land under an authorisation granted by the Commission under this section the Commission shall have power to dispose of it by sale or otherwise.".").

On Question, amendment agreed to.

Lord Pearson of Rannoch moved Amendment No. 24:

Page 4, line 10, at end insert--
("(10) This section may not be used by the Commission in any attempt to enhance the natural heritage without the agreement of the landowners in question.".").

The noble Lord said: My Lords, again Amendment No. 24 may be rendered somewhat redundant if my noble friend can deliver on the purposes of Clause 4, especially as regards marauding deer and the natural heritage.

The object of the exercise in Amendment No. 24 is to make sure that the powers of Clause 4 cannot be used to enhance the natural heritage without the agreement of the landowners in question. But I think that I should say no more about it now because I look forward with hope to my noble friend's Amendment No. 25 and, further, his Amendment No. 29 which appears to do for Clause 5 what this amendment is designed to do for Clause 4. I beg to move.

The Earl of Lindsay: My Lords, in responding to Amendment No. 24 moved by my noble friend Lord Pearson of Rannoch, I shall speak to government Amendments Nos. 25 and 29.

I have made it clear in presenting the Bill that our intention is that the compulsory powers of the commission in Clause 4 and the latter part of Clause 5 could be used only as a last resort to protect the existing natural heritage against serious damage and that they could not be used to enhance the natural heritage; that is to say, to change its fundamental character.

Following our discussion at Committee stage on the question of whether enhancement of the natural heritage could be pursued under the terms of the Bill, I asked my legal advisers to check again to ensure that the provisions of the Bill as they stand meet our intention. They have advised me that that is indeed the effect of the provisions as they stand.

Moreover, they have raised some doubt as to whether the provisions of revised Section 7(1) in Clause 5 (on control agreements) could be used to bring about

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enhancement if that resulted in a fundamental change in the character of the land--such as, for example, upgrading moorland or scrubland.

It was always our intention to allow such enhancement if the control measures required could proceed by voluntary agreement among the parties concerned. At least one of the existing voluntary control schemes being promoted by the commission is concerned, among other things, with the re-establishment of woodland. It seems to me important that, for the avoidance of doubt, we should ensure that such action can proceed where it is considered appropriate by the commission; and, indeed, where it is welcomed by the parties involved.

As a consequence I am introducing Amendment No. 25 to make it clear that enhancement of this sort can proceed under Section 7(1) of the 1959 Act. The effect of the amendment will also be to reinforce the point that such enhancement cannot proceed under Clause 4 and the compulsory powers in Clause 5. As this amendment would not apply to those provisions, the legal effect is to create a clear implication that such fundamental change in the character of the land is excluded from them; in other words, it is excluded from Clause 4 and from the control orders in Clause 5.

Amendment No. 29 delivers part of that purpose. It is necessary because the wording of Section 7(6) in Clause 5 contains specific mention of "control agreements" as preconditions for moving to control schemes. The effect of the second amendment will be to make it clear that control agreements which have enhancement as their object will not be capable of being transformed into control schemes.

There is a well-established legal principle that when a qualifying provision is mentioned in one section, but not in another, it does not apply to the section where it is not mentioned. Consequently, there is no need to make any reference to Section 6 of the principal Act because the exclusion is already made. I hope, therefore, that my noble friend will feel able to withdraw Amendment No. 24 since the Government Amendments Nos. 25 and 29 will, I believe, answer the concerns expressed by him and, indeed, by the noble Lady, Lady Saltoun.

Lord Pearson of Rannoch: My Lords, I am grateful to my noble friend the Minister for that response. From what I heard, I believe that the amendments do answer my concerns. However, if the effect of Amendment No. 29 in fact bites into Clause 4 of the Bill as proposed by Amendment No. 24, I do not really see why it should not also be put on the face of the Bill. But, that is something that my noble friend and I can perhaps discuss. In the meantime, I am happy to accept the legal position that my noble friend put forward.

As I understand it, the effect of Amendment No. 29 would not allow the commission to enhance the natural heritage value by using the control scheme mechanism which is set out at the end of Clause 5; in other words, any such enhancement would have to come under a management agreement of some kind, presumably with Scottish Natural Heritage or, perhaps, the Deer Commission. I do not know. In any case, I believe

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that the following amendments will probably clarify the question of compensation and any payment for the enhancement and the change of use of the land in question. In view of the assurances made by my noble friend, I am happy to withdraw Amendment No. 24.

Amendment, by leave, withdrawn.

7.45 p.m.

Clause 5 [Control agreements and control schemes]:

The Earl of Lindsay moved Amendment No. 25:

Page 4, line 34, at end insert--
("( ) For the purposes of subsection (1) above "the natural heritage" includes any alteration or enhancement of the natural heritage which is taking place, or is proposed to take place, either naturally or as a result of a change of use determined by the owner or occupier of the land in question; and "damage" shall be construed accordingly.").

On Question, amendment agreed to.

The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before I call Amendment No. 26, I should point out to your Lordships that there is an error in the amendment as set out in the Marshalled List in that the word "occupies" should be "occupiers".

Lord Pearson of Rannoch moved Amendment No. 26:

Page 5, line 1, after ("measures;") insert--
("(cc) the compensation payable to the owners and or occupiers of the land in question;").

The noble Lord said: My Lords, the amendment opens up for the first time the question of any compensation that might be paid when the provisions of Clause 5 are activated. I should point out that we have not tabled amendments for compensation for when the provisions of Clause 4 are activated because we assume that we will get those provisions right, and that they will not be able to be misused against deer which are not really marauding and damaging the natural heritage.

Therefore, so far as I can see, the question of compensation or payment in return for a management agreement arises at present only in regard to Clause 5. Indeed, as I said when my noble friend moved the previous amendment, it seems to me that any management agreement would probably be struck with Scottish Natural Heritage and that a payment in return for a change of management, such as the removal of deer forest status from an area of ground, would be the subject of such a management agreement.

However, I am not clear as to whether it is proposed that the Red Deer Commission might have the power to make such an agreement. My understanding at the moment is that its budget would probably not stretch to such largesse. I believe it is really Scottish Natural Heritage which one would see coming into play here. I tabled the amendments to find out from my noble friend the Minister whether or not the Government

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propose that any enhancement of the natural heritage under the Bill will be the subject of a management agreement and subject to compensation. I beg to move.

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