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Baroness Byford: My Lords, I apologise to the House. It was a complete oversight on my part. I would have said more about the amendments of the noble Baroness, Lady Miller. I unfortunately got my papers the wrong way round, but I am happy if the Minister wishes to deal with them now.

Baroness Farrington of Ribbleton: My Lords, I assumed that we had an ad hoc grouping and was quite happy about it. The noble Baroness, Lady Byford, need not apologise.

Clause 50 provides a power for the Secretary of State to issue codes of practice relating to non-native species, or to approve such codes issued by others. The purpose of the codes is to inform and educate people so that they do not cause problems for our native biodiversity by inadvertently allowing non-native species to establish themselves in the wild. They provide guidance on how to avoid committing an offence, of releasing or allowing the escape of non-native animals, or planting or causing non-native plants to grow in the wild.
 
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Amendment No. 125 would set the clause's commencement as a baseline date so that codes may be issued or approved by the Secretary of State for any animals that were not ordinarily resident or regular visitors to GB at that date. That would mean that such codes could be issued in relation to any animal which became established in the wild after that date, and which was not listed in Schedule 9 to the 1981 Act. An example would be chipmunks. I admit that my grandchildren are trying to find out where the chipmunks are in the wild because of their Chip & Dale, but they have not found them.

Under the terms of Clause 50 a code could be issued on how such animals should be kept in captivity. There has recently been a number of sightings of chipmunks in the wild. In time, they could become self-sustaining, and as a result would be considered to be ordinarily resident. That would mean that the Secretary of State could not issue a code for the keeping of chipmunks under Clause 50. Unless and until the species was listed on Schedule 9, the amendment would allow her to do so without such a listing.

At first sight it looks attractive, but we consider the appropriate mechanism for dealing with non-native species, which become established in the wild, is to list them on Schedule 9, which will ensure that further releases remain illegal. That would also bring them back within the scope of Clause 50(1)(b), and additions to the schedule can be made by the Secretary of State at any time.

Amendment No. 126 is similar to one tabled in Committee, and seeks to add an alternative category for which such codes may be issued. The new category for which the Secretary of State may issue or approve a code of practice is for the marketing, sale and introduction of wild species, hybrids and cultivars derived from hybrids, including those considered indigenous or naturalised to Great Britain, as well as those considered not ordinarily resident. Any plant, including hybrids, can be added to Schedule 9. A consultation on additions to Schedule 9 will be published before the summer.

Amendment No. 126 would widen the scope of animals and plants to which codes may relate, and specifically includes wild species—an uncertain term that is open to wide interpretation—hybrids and cultivars of hybrids. Following our debates in Committee, I am assuming that that is to ensure that cultivated species of hybrid plants are covered, and from what the noble Baroness said, I think that that assumption is right.

We consider that hybrid animal and plant species are already covered by Sections 14(1) and (2) of the 1981 Act, and therefore also by Clause 50. Most animal hybrid species are not ordinarily resident in the UK, and so will be caught by Section 14(1)(a) and paragraph (a) of the list in proposed new Section 14ZB(1). Hybrid animals that are ordinarily resident can be listed in Schedule 9, as sika deer hybrids have been, and so would be covered by Section 14(1)(b) and paragraph (b) in new Section 14ZB accordingly.
 
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In relation to plants, there is nothing to prevent hybrid plant species being listed in Schedule 9 so that they are covered by Section 14(2) and paragraph (b). Finally, you will note that new Section 14ZB(c) permits the issuing of codes in relation to descriptions of animals and plants included in paragraphs (a) and (b). We believe that this could include hybrids and cultivars of those species. We think that this is the appropriate and simplest course to take.

I understand that the noble Baroness's intention is to prevent the inadvertent introduction of hybrids of native plants, such as Spanish bluebells, which are hybridising with our native bluebells and transforming our native woodland. There is currently no prohibition under Section 14 of the 1981 Act on planting hybrid bluebells in the wild or from causing them to grow there.

We believe, however, that our current legislation is adequate, because, as explained above, any plant, including hybrids, can be listed in Schedule 9 and, therefore, fall subject to Section 14. A review of Schedule 9 is currently being undertaken and a consultation on proposed additions and deletions is likely to be published in the next few months.

The amendment also widens the scope of Clause 50 to include those species that are considered indigenous or naturalised. Presumably these are included so that codes may be issued in relation to species which are considered to have become ordinarily resident but are not listed on Schedule 9, for example, rabbits.

I have tried to cover this as rapidly as I can. There is much more that I could add. I would like to take the opportunity to write to noble Lords who have shown an interest.

In practice, codes of practice issued by the Secretary of State will be targeted at vectors of introduction rather than specific species—for example, the code published last year was targeted at the horticultural sector; this year's code will be targeted at the exotic pet trade, and a future code will be aimed at transportation routes.

I turn to Amendment No. 127, which has not yet been spoken to.

Baroness Byford: My Lords, perhaps I can clarify the position. The noble Baroness, Lady Miller, has not had a chance because I was out of order in trying to move my amendment. I do not know whether she wishes to speak to Amendment No. 127. We have not had a chance to debate it.

Baroness Miller of Chilthorne Domer: My Lords, because of the groupings, I have spoken only to my amendment. It would be clearer if I made my reply to the Minister's reply, without now trying to go into all the other issues.

Baroness Farrington of Ribbleton: My Lords, I shall try to be brief. I apologise. There will be many cases where we want to issue codes relating to non-trade activities, such as the cultivation, breeding and
 
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keeping of species, hybrids and cultivars. We would not want to imply that codes could not be issued in relation to those.

We appreciate that the intent behind Amendment No. 127 is to make those people who fail to comply with the code of practice issued or approved under Clause 50 liable to criminal or civil proceedings. That would elevate the codes to a status that we believe is totally inappropriate. Most introductions are not deliberate and these codes are intended to guide rather than to legislate. I draw a parallel with the Highway Code. Much as failure to comply with many of the provisions in those codes is not an offence in itself, it may be used as evidence in court proceedings under the Traffic Acts to establish liability. Failure to comply with a Clause 50 code may be used in court as evidence of whether a defendant can come within the terms of the defence of taking reasonable steps, and exercising due diligence to avoid committing an offence under Section 14 of the Wildlife and Countryside Act 1981. I hope that that will reassure the noble Baroness with regard to Amendment No. 127.

I apologise for detaining the House at this hour, but there is great interest in this, and I will write to noble Lords if I have left out anything that would be of additional help. I hope that the noble Baroness will not need to press her amendment to a vote.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for the fullness of her reply. I shall start with the last point first. She is absolutely right about the codes, but it would be a very serious matter if someone did not abide by the exotic bird code, for example, and introduced bird flu that affected all our poultry flocks and possibly also human health. As she said, there are lines that can be followed.

On the substantive amendment, the Minister mentioned that certain decisions would be taken at EU level by October. I hope that the Government will
 
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press for the ban to stay in place at least until October, pending a more permanent decision. She also mentioned the movement of goods as a reason why we could not impose a permanent ban, but I believe that it is accepted more and more that live birds and live animals cannot be treated simply as if they were any other moveable goods. The case law that I quoted when I moved the amendment leads me to believe more firmly that there will be a separation between what is and is not reasonable. I encourage the Minister and her department to consider the developments of case law that would enable us to look to a permanent ban where we believe it to be in the interests of animal health or national biodiversity. I believe that the law is beginning to recognise that live creatures are different.

There are a couple of myths which the Minister needs finally to dispel. One is that the trade in imported wild birds can be regarded in any way as sustainable. The second is that CITES species are in some way adequately protected. I do not want to repeat those arguments at this hour, but will say merely that there is not enough scientific evidence to assess the impact of the trade on CITES species listed in Appendix 2. I believe that every NGO in the business would accept that, as, I hope, would her department.

Amendment, by leave, withdrawn.

Clause 50 [Codes of practice in connection with invasive non-native species]:

[Amendments Nos. 125 to 127 not moved.]

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