Nature Conservation (Scotland) Bill: Stage 2
Good morning. I welcome to the meeting committee members, members of the public and press and the Deputy Minister for Environment and Rural Development and his team. I have received no apologies. I remind everyone to turn off their mobile phones.
Agenda item 1 is consideration of the Nature Conservation (Scotland) Bill at stage 2. This is our last go at the bill. I invite members to declare any relevant interests.
I declare the usual interests. I am a landowner and a member of the Scottish Landowners Federation.
I am a member of the Scottish Crofting Foundation.
I am a landowner, but I have only a humble croft on the Isle of Lewis, and I am a member of the Scottish Crofting Foundation. Why do we have to declare our interests every single week?
Because the standing orders require that we do so.
Everyone should have the relevant paperwork. The clerks have spare copies of the bill, the marshalled list of amendments and the groupings, should members need them. As in previous stage 2 meetings, I shall call every amendment in strict order from the marshalled list. The amended bill will be published after we have whacked through it today.
Before section 52
The first group of amendments is on protection of fossils. Amendment 246, in the name of Maureen Macmillan, is in a group on its own.
As the committee knows, I have been concerned for a long time about the protection of our fossil heritage. Concerns about depredation of our fossils were raised with me first by members of the Caithness fossil group, who told me about the important fossil sites that unscrupulous private dealers were raiding—the dealers sometimes came from abroad. Those concerns were reinforced by the evidence that Professor Crofts gave to the committee. I had hoped to lodge an amendment that would provide for sanctions against such irresponsible collectors, but it became apparent to me that although some palaeontologists agreed with that, many others did not because they believed that it would hamper the development of genuine interest in fossil collecting. I have therefore lodged an amendment that would ensure that Scottish Natural Heritage would, in consultation with palaeontologists, produce strong guidelines on fossil collecting, which would be advertised and promoted strongly. I hope that the Executive will accept amendment 246. I also seek reassurance that the Executive will keep a closer eye on our fossil heritage through SNH. Should amendment 246 be accepted, I would ask the Executive to assess whether the proposed guidelines will address the problem and, if not, to consider further strengthening the law.
I move amendment 246.
We have tracked the issue of fossils through since stage 1, so I know that everyone is briefed fully on it.
Amendment 246 is a good amendment which, I am sure, everyone who has an interest in geology and fossils will welcome. Maureen Macmillan is to be commended for lodging the amendment; she has made great efforts to raise the profile of geological interests in the context of the bill and beyond, for which she deserves our thanks.
It is inevitable that geological interests often get overshadowed in a bill of this nature, in which the emphasis is on wildlife and the wider environment. That is unfortunate and we should not forget that the science of geology was in many key respects a Scottish innovation, given the great contributions that Scots such as James Hutton, Charles Lyell and Hugh Miller made to scientific advance in the 18th and 19th centuries. Right here in the heart of Edinburgh, we have a site of special scientific interest in Arthur's Seat, which is in the convener's constituency and which is important not only for its geological features, but as one of the earliest sites of Hutton's archaeological investigations.
We are all in favour of amendment 246 and we take seriously our geological heritage. Maureen Macmillan advanced a convincing case for the development by SNH of a Scottish fossil code as a means of providing important advice and information to everyone who has an interest in fossils. In combination with measures in the bill, such as improved protection for SSSIs, the code will make a genuine contribution to ensuring that our fossil heritage is respected and safeguarded for the future. I am happy to support amendment 246.
Thank you for that and for the advert for the interesting SSSI on my patch, which I have visited.
I am grateful that the minister supports amendment 246. It has taken a long time for me to get this far, because I have tried to have similar amendments agreed to during the passage of previous bills. I am really delighted that the provision that I have suggested will now become law. Given that the minister mentioned Hugh Miller, perhaps he would like to visit his cottage on the Black Isle to see the fossils that were discovered two centuries ago.
The fossils were stolen.
Amendment 246 agreed to.
Section 52 agreed to.
Section 53—Crown application
The second group of amendments is on Crown application. Amendment 247, in the name of Dennis Canavan, is in a group on its own.
Thank you for allowing me to address the committee. Amendment 247, which would amend section 53, refers to line 8 on page 30 of the bill and would remove the words:
"but not Her Majesty in her private capacity".
Under section 53, the provisions of parts 1, 2 and 4 would apply to Crown land but not to land that is owned by Her Majesty in her private capacity, for example Balmoral estate. I am not a regular visitor to Balmoral: I have not been a guest of Her Majesty at Balmoral nor, indeed, at the Bar-L or anywhere else, but I have occasionally walked on Balmoral estate and I have climbed Lochnagar, which was a memorable experience that I strongly recommend. It affords breathtaking views of some of the most outstanding natural environment in Scotland, indeed, in the world. It seems to me, therefore, that it would be anomalous to exclude such land from the provisions of parts 1, 2 and 4 of the bill.
Members who were on the Rural Affairs Committee in the last Parliament may recall that there was a similar exclusion clause for Balmoral in the original draft of the Land Reform (Scotland) Bill, but the Executive—and, I presume, the Queen—were eventually persuaded to accept an amendment of mine that extended the right of access to land that is owned by the Queen in her personal capacity. In the interests of consistency, I hope therefore that the Executive and the Queen will accept amendment 247.
Part 1 of the bill refers to a duty of every public body and office holder to
"further the conservation of biodiversity",
and to the designation by ministers of a Scottish biodiversity strategy. Balmoral estate is part of Scotland—there is therefore no justification for its exclusion from a Scottish biodiversity strategy.
Part 2 of the bill refers to a duty of Scottish Natural Heritage to notify landowners if their land is considered to be of special scientific interest, and to specify
"acts or omissions which appear to SNH to be likely to damage"
any aspect of natural heritage that is of such special interest. Under the bill as drafted, if Scottish Natural Heritage considered Balmoral estate, or any part of it, to be of special scientific interest, SNH would be unable to use the notification, designation and site management provisions of part 2 of the bill, and ministers would be unable to make orders under part 4 of the bill.
I understand that some kind of concordat exists, or is proposed, between the Queen and Scottish Natural Heritage to ensure that Natura sites—that is, European Union-designated sites, including special protection areas and special areas of conservation—are voluntarily managed in a way that complies with European Union requirements. However, if a piece of land that is owned by the Queen met the criteria for a site of special scientific interest, but was not designated by the European Union as a Natura site, it would not, apparently, come within the terms of that concordat, which will leave a considerable loophole in the legislation. As I said, Balmoral estate contains some of the most outstanding natural environment in Scotland; the Scottish Parliament has a duty to conserve it, instead of just leave that to the discretion of the Queen or her factor.
I believe that there is in English law no distinction between the Crown as an institution and the person who wears the crown, but in Scotland there is such a distinction. It is wrong for the Executive to use that distinction in such a way that the legislation would bind every landowner in Scotland, including the Crown, but not Her Majesty in her private capacity. We cannot have one law for the Queen and another law for every other landowner in Scotland. As I have told Parliament on previous occasions, Scotland's mountains, lochs and glens are not merely the property of royalty or other landed gentry; they are part of Scotland's natural heritage—part of our natural heritage—and Scotland's Parliament must recognise that. I ask the committee to accept my amendment 247.
I move amendment 247.
The first observation that I have to make is that it is an absolute outrage that Her Majesty the Queen has not invited that most decent of citizens, Comrade Canavan, to Balmoral. I hope that next time the minister meets Her Majesty, he will raise that on Mr Canavan's behalf.
On the serious point that Dennis Canavan cogently argued, I am minded to support the position that he outlined, although I am not in a position to respond in any way to the detail that he laid out—I hope that the minister will do that at the end of the discussion. I recall Dennis Canavan's contribution to the debate on land reform during the previous session of Parliament, when this issue was addressed, and the amended provision is now part of the historic Land Reform (Scotland) Act 2003. With those few words, I intimate that I am minded to support the position as outlined, subject to further contributions from other members, and I await a detailed response from the minister.
For the purposes of consistency, the issue that Dennis Canavan raised in respect of the Land Reform (Scotland) Act 2003 is important. If we enshrine a principle in one piece of legislation, we should carry it through in others—otherwise, we run the risk of creating strange anomalies. It seems a little odd to put landowners into completely separate categories by virtue of their particular status rather than by virtue of any consideration that is central to the bill, such as the land or the natural heritage that they own. I, too, will support the amendment.
I have had some dealings with the factor at Balmoral and I recognise the difference between the conditions that relate to SSSIs on Invercauld estate, which is nearby, and the so-called gentleman's agreement at Balmoral—there is an anomaly. It is important that the Nature Conservation (Scotland) Bill take into account the primacy of Scots law, under which the Crown and Her Majesty are separate legal entities. For consistency's sake, we should support Dennis Canavan's amendment, which I will have pleasure in doing.
I, too, am minded to support the amendment and I would be grateful for clarification of why the minister deems it necessary for the Queen to be outwith the scope of the bill, given that the Crown Estate is within its scope. I do not think that it will do anything for Her Majesty to be excluded. I am interested to know the rationale behind the decision.
I, too, remember the debate with Comrade Canavan in relation to access provisions in the historic—as Alasdair Morrison said—land reform measures that we pressed through in the previous session. On that occasion, I was happy to agree with Dennis Canavan on the importance of the Deeside hills to walkers such as himself, and to climbers—it is a beautiful part of the country. However, this is a different issue and it is not as straightforward as the debate that we had last time on the importance of public access to Lochnagar.
I want to correct a couple of things that Roseanna Cunningham and Dennis Canavan said. The provision that appears in the bill is not something that we have introduced; rather it will simply preserve an existing arrangement from more than 20 years ago, which reflects the thinking that prevailed at that time. In that regard, contrary to what Dennis Canavan said, there is no difference in law between Scotland and England.
The exception in section 53(1) of the bill preserves an existing position. Balmoral, as Dennis Canavan said, is not currently covered by SSSI designation, and I am not aware of that being a particular problem. What I can say in response to Karen Gillon's point, however, is that the palace has asked me to stress that it did not ask for the exemption that appears in the bill. As a matter of general principle the Queen, in her private capacity, is not looking for special treatment on such matters. Balmoral estate has a good story to tell, the palace would argue, in relation to issues such as conservation and public access, which we have discussed. The estate is keen to emphasise that positive story and does not want to become embroiled—nor do I—in a negative debate.
Neither the Executive nor the estate would want people to think that anyone had anything to hide or that the estate does not want to play a full part in nature conservation and in conserving our natural heritage. There are, however, problems associated with passing amendment 247 in a different context, and I ask Dennis Canavan to seek to withdraw the amendment so that the Executive can lodge an amendment at stage 3 that will clarify any concerns about provisions in other parts of the bill in respect of Balmoral estate. If Dennis Canavan is happy with that, we will lodge an amendment to introduce the protection that he seeks for Balmoral, as for any other part of Scotland.
Before we go back to Dennis Canavan, I would like to clarify something. Are you saying that you agree with the policy intention of Dennis Canavan's amendment but not with the technical way in which he has drafted it? Are you committing yourself to coming back at stage 3 to deliver the policy intention that Dennis has outlined to us this morning?
Yes—that is precisely correct. Against the amendment is the fact that, for example, the compulsory purchase provisions in the bill could not be applied to Balmoral. That would be outwith legislative competence, so it is a question of tidying up aspects such as that. However, I accept wholly the principle on which the proposition is based.
Thank you for that clarification. I invite Dennis Canavan to wind up the debate.
I listened carefully to what the minister said. He said that he was happy to agree with me during the passage of the Land Reform (Scotland) Bill about the right of access to land that is owned by the Queen in her private capacity. It therefore seems to be rather inconsistent that he disagrees with me on the duty to conserve land that is owned by the Queen in her private capacity. When the Land Reform (Scotland) Bill was being considered, the original argument that was put up by the Executive and by some of the people who opposed my amendment was that there were security reasons for not giving the public the right of access to Balmoral. However, even the Queen and her factor were eventually persuaded that there was no real security threat at all, so they went along with my amendment.
The wording of amendment 247 is virtually identical to the wording of the amendment to the Land Reform (Scotland) Bill that was accepted by Parliament in the previous session, so I cannot agree with the minister's conclusion. He says that this is a different case, but he is unable to explain what is different about it. Perhaps he can tell the committee whether there have indeed been any recent communications between the Executive and the Queen or her representatives about any royal objections to the amendment.
The minister says that the provisions in section 53 will preserve an existing arrangement whereby Balmoral is not covered by SSSI designations, but he has not explained why we should simply continue with the status quo. The purpose of the bill is to alter the status quo in order to increase the possibilities and opportunities for conservation of Scotland's natural heritage. It may well be true that Balmoral has a good story to tell, but in years to come there might be a change of factor or a change of arrangements. I dare say that other landowners in Scotland also have a good story to tell about their voluntary conservation efforts, but why should the bill bind every landowner in Scotland, including the Crown Estates, but not the Queen in her personal capacity?
The minister said that there was nothing to hide, but there was something lacking in his attempt to justify his opposition to my amendment. He asked me to seek to withdraw amendment 247 in favour of the possibility of an Executive amendment's being lodged at stage 3, but I have never been in the business of buying a pig in a poke. I do not know whether the Executive amendment will cover the terms of amendment 247.
I simply did not understand the minister's reference to my amendment's being outside the legislative competence. Was he hinting that Parliament does not have the competence to accept my amendment? I very much doubt that that is the case. I doubt that the distinguished clerks of the committee would have accepted my amendment for debate if they thought that it was outside Parliament's legislative competence. If my amendment to the Land Reform (Scotland) Bill in the previous parliamentary session was competent, amendment 247 must also be competent.
I ask the committee to agree to amendment 247.
Do you want to press amendment 247?
Yes.
Will Dennis Canavan recap on what he said about his amendment to the Land Reform (Scotland) Bill? Am I right in saying that exactly the same thing happened in that situation, in that, having outlined his proposal at stage 2, he was then content to accept an Executive amendment at stage 3?
No. On that occasion, my amendment was eventually accepted by the Executive. In fact, it was a rather strange situation. A few days after I lodged my amendment, Ross Finnie, who was a Cabinet minister, added his name to it, so that it became an amendment that was supported by the Executive. The amendment was agreed to at stage 2 and endorsed at stage 3.
I see that two other members want to speak. I do not want us to get into another debate on the amendment, so I will allow them to ask only for brief points of clarification.
In his response, the minister seemed to imply that, if amendment 247 were accepted, there would be a question about the legal competence of other sections of the bill. Will the minister clarify that?
Will the minister respond?
Rather than respond to some of the rhetoric—
No—just respond to that one question.
That is what I was about to do. As I said, schedule 5 to the Scotland Act 1998 specifically precludes compulsory purchase provisions in the bill from being applied to Balmoral because that would be outwith the legislative competence of Parliament. Committee members will be aware of that because they have sat through every minute and every hour of the bill's passage through Parliament. Mr Canavan is obviously not aware of the compulsory purchase provisions that we introduced to protect SSSIs. Consequently, he is probably unaware of that issue.
Will the minister clarify the exact nature of his proposal? Is he proposing to introduce an amendment that will do the same as what amendment 247 would do but without any CPO provisions?
That is what I said. That would tidy up the issue of legislative competence to which I referred.
Will the minister clarify this matter of legislative competence? Will he quote us the chapter and verse from schedule 5 of the Scotland Act 1998 whereby compulsory purchase powers would be permitted in respect of any land in Scotland except land that is owned by the Queen in her private capacity?
Minister, you have already mentioned schedule 5 to the Scotland Act 1998. Do you want to mention the exact paragraph? I am not sure that that is utterly necessary, although I think it might be coming.
If you wish, convener. Paragraph 3(3)(c) in part 1 of schedule 5, which is on general reservations on the constitution, precludes
"the compulsory acquisition of property held or used by a Minister of the Crown or government department."
Thank you for that.
The Queen is not—
Sorry, Dennis. I will not take an exchange across the floor. Speak through the chair, please.
Sorry, convener.
Do you want to press amendment 247?
Yes, because although I am not a lawyer, my reading of the Scotland Act 1998 is that it does not prohibit the compulsory purchase powers that the minister referred to earlier. The Queen is not a minister of the Crown.
The question is, that amendment 247 be agreed to. Are we agreed?
No.
There will be a division.
For
Cunningham, Roseanna (Perth) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Scott, Eleanor (Highlands and Islands) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 247 disagreed to.
On a point of order, convener. As I understand it, when a bill is introduced to the Parliament, the Presiding Officer is responsible for making a statement as to whether he thinks that the bill is within the provisions of the Scotland Act 1998 and therefore within the competence of the Parliament. If between now and stage 3 the Presiding Officer and the Parliament's legal advisers are of the opinion that my amendment is within the legislative competence of the Parliament, will I be permitted to relodge the amendment for stage 3?
The issue of which amendments are to be admitted at stage 3 is a matter for the Presiding Officer to judge.
Section 53 agreed to.
Sections 54 and 55 agreed to.
Schedule 7
Minor and consequential amendments and repeals
Group 3 is on repeals in relation to the Natural Heritage (Scotland) Act 1991. Amendment 249, in the name of the minister, is grouped with amendments 250, 183, 184, 251 and 252.
I am again grateful to Nora Radcliffe for lodging amendments 183 and 184. Their intention is to remove the unused natural heritage area designation from the statute book, which I am happy to support. The natural heritage area designation is a relic of a Government that was opposed to national parks in Scotland. As we know, that is not our position. As the designation has never been used and we have no intention of using it, I see no reason to retain it. As a result, I am happy to support Nora Radcliffe's initiative.
Amendments 249 to 252 will complete the job of abolishing NHAs, which were a provision of the Natural Heritage (Scotland) Act 1991, by making necessary consequential changes to a range of other statutes. The amendments will also remove redundant provisions in the Environment Act 1995 and the Water Industry (Scotland) Act 2002 that will be overridden by the SSSI provisions in the bill.
I ask members to support all the amendments in the group.
I move amendment 249.
I have little to add to what the minister has said. He is not always so grateful to me, but it is nice that we have the same policy direction on this issue. I am taking the opportunity to do a wee bit of tidying up.
There is a lot of pressure to consolidate the law in this area, as it has been heavily amended and is extremely diverse. It is good that we can take this opportunity to remove at least one bit of obsolete legislation. I am grateful to the Executive for all the work that it has done in tidying up my original amendments.
Amendment 249 agreed to.
The fourth group of amendments relates to the Forestry Act 1967 and felling licences. Amendment 234, in the name of the minister, is in a group on its own.
Amendment 234 makes a consequential change to sections 10(2) and 12 of the Forestry Act 1967 to provide the Forestry Commission Scotland with the necessary power to attach conditions to felling licences granted under that act to secure the interests of nature conservation.
Currently, the Forestry Act 1967 enables the Forestry Commission Scotland to attach conditions to felling licences in the limited circumstances specified in the act. Under section 10(2) of the act, conditions can be attached in the interests of good forestry or agriculture or the amenities of the district or for the purpose of complying with the duty of promoting the establishment and maintenance of adequate reserves of growing trees. Section 12 of the act restricts the conditions that can be attached to felling licences. The conditions must relate to the stocking or restocking of the land on which the felling is to take place or the maintenance of the trees on that land.
Amendment 234 allows the Forestry Commission Scotland to attach conditions rather more widely—for the purpose of conserving or enhancing the flora, fauna or geological or physiographical features, or the natural beauty or amenity, of any land—to operations related to felling that could otherwise have a deleterious effect on nature conservation. I hope that committee members will support our aim, by means of this amendment, of giving adequate protection for the purpose of nature conservation.
I move amendment 234.
I welcome this proposal, which will give the Forestry Commission a useful ability to act in the way that has been described.
Amendment 234 agreed to.
Amendment 250 moved—[Allan Wilson] and agreed to.
Amendments 183 and 184 moved—[Nora Radcliffe]—and agreed to.
Amendment 251 moved—[Allan Wilson]—and agreed to.
Amendment 186 moved—[Alasdair Morrison]—and agreed to.
The fifth group of amendments relates to the Deer (Scotland) Act 1996 and prevention of damage to the natural heritage. Amendment 235, in the name of Bruce Crawford, is grouped with amendments 237 and 236.
It has long been known that ever-rising deer populations are damaging to the natural environment, prevent native woodlands from regenerating and result in heather moorland and other open ground habitats being over-grazed. Over-large deer populations also have an adverse impact on commercial woodlands, agriculture and crofting.
RSPB Scotland and WWF Scotland recently highlighted that issue and the need for further action and legislation in a report that was commissioned from an experienced and independent land management expert. The report highlights how, since 1974, the number of red deer alone has doubled from approximately 200,000 to a figure close to 450,000.
I know that it is notoriously difficult to count the number of deer, but the report contains the most authoritative and up-to-date information. I am not aware that its findings have been challenged by the Deer Commission for Scotland or, indeed, any serious commentator on the problem of deer numbers.
The need for legislative change is acknowledged by the Deer Commission for Scotland, which submitted proposals to the Executive in April 2003. Although the Executive rejected those proposals, the Deer Commission for Scotland continued to press its case. On 12 November 2003, it told this committee in relation to the Deer (Scotland) Act 1996:
"We also feel that section 8 is a rather difficult and convoluted piece of legislation that is not designed to be used easily."
It added:
"At the moment, it is tricky for us to meet the requirements for triggering the use of section 8 powers."—[Official Report, Environment and Rural Development Committee, 12 November 2003; c 413-414.]
The key ambition of the Deer Commission for Scotland and others involved in deer management is to amend section 8 of the Deer (Scotland) Act 1996 so that instead of having difficult requirements and convoluted procedures, the Deer Commission for Scotland's powers are more akin to SNH's new power in the bill to make land management orders.
Amendments 235, 236 and 237 seek to address the issues that I have raised. My original intention was to make it possible for the committee to consider a full redraft of section 8 of the Deer (Scotland) Act 1996 of the kind proposed by the Deer Commission for Scotland in its response to the Executive. However, it seems that that would have included elements that are outwith the scope of the Nature Conservation (Scotland) Bill, which is tightly drafted around the matters of conservation and natural heritage only.
Given that the specific proposals are all about deer, which are a significant part of our natural heritage, that was a considerable surprise and disappointment. I am sure that the minister did not intend that when he agreed the scope of the bill. Given earlier comments by the Deer Commission for Scotland, I wonder whether Scottish Executive Environment and Rural Affairs Department officials knew what they were about when they made the scope of the bill so tight. However, that was the ruling, so I have had to consider an alternative strategy, which is by way of the amendments before the committee today.
The first issue that my amendments seek to address is the use of the term "serious damage" in the Deer (Scotland) Act 1996. The second is the current convoluted public inquiry procedure. Members will recall that, on 12 November 2003, the director of the Deer Commission for Scotland told the committee:
"The other trigger is where we can establish with a great degree of certainty that serious damage has occurred, is occurring or is likely to continue to occur because of deer. The second trigger is a technical requirement, but we would have to be certain that we could prove that deer were the problem."
He went on to say:
"We have to be very clear about the situation because, if we ever use section 8 of the 1996 act, the chances are that we will be using it against someone who can easily afford to use some of the best Queen's counsel in the land to challenge us. There is a very high burden of proof on the Deer Commission in relation to the use of section 8."—[Official Report, Environment and Rural Development Committee, 12 November 1993; c 414.]
Therefore, the Deer Commission for Scotland's position is quite clear.
In his evidence, the director went on to explain how the burden of proof on SNH for showing a requirement for a land management order is lighter than the burdens currently required of the Deer Commission for Scotland. Interestingly, the Executive response to the Deer Commission for Scotland's proposals included the comment:
"it is accepted that section 8 of the Deer Act is relatively complex, rigid and time limited".
That concern leads me to suggest the deletion of the word "serious" from section 8 and section 11 of the Deer (Scotland) Act 1996—where it is used to describe damage to the natural heritage—which is what amendments 235 and 237 would do.
Currently, section 8(1)(b)(i) provides for control schemes where the Deer Commission is satisfied that
"deer have caused and are causing serious damage to woodland or to agricultural production, including crops and foodstuffs, or serious damage, whether directly or indirectly, to the natural heritage, or serious injury to livestock, however caused, or have become and remain a danger to public safety".
Because of the tightness of the scope of the bill, I cannot seek to remove the first mention of the word "serious", so I seek to remove the second mention. That would lower the burden of proof on the Deer Commission and encourage it to use its existing powers more. By allowing section 8 schemes or section 11 measures when there is damage rather than "serious" damage, the Deer Commission would be able to act on evidence that damage was being done rather than being concerned to satisfy the much more onerous requirement of serious damage.
Amendment 236 seeks to remove some of the convoluted requirements on the Deer Commission that I referred to earlier. Currently, a section 8 scheme may be objected to by anyone—any Mr and Mrs Smith from Kirkwall to Kent can object. If the objections are not withdrawn, there must be a public inquiry, leaving the Deer Commission with the continual prospect of costly and lengthy public inquiries, perhaps with several objectors.
Of course, it is only proper that if one's rights or property are affected, a right of appeal exists. I had hoped to introduce a Land Court approach, as exists for LMOs. Instead, the amendment goes part of the way by limiting the right of public inquiry to objectors who are materially affected—the amendment refers to the "owner or occupier". That maintains natural justice, while reducing the bureaucratic hurdles that the Deer Commission faces.
With the amendments, I have taken a balanced approach to trying to make it easier for the Deer Commission to exercise its powers while ensuring that people who are affected who have a real and meaningful interest retain their proper right of appeal. It is interesting to note that the amendments have the support of Scottish Environment LINK.
I move amendment 235.
I will be interested to hear how the minister and SEERAD view this group of amendments, because the evidence that we have received throughout our consideration of the bill is that serious damage is being done by deer in Scotland, as Bruce Crawford eloquently stated.
The fact that there have been problems between SNH and the Deer Commission in dealing with the issue is on the record. We may argue about the ability of the bill to manage the issue totally, but when a bill on nature conservation is before us that gives us an opportunity to state a means whereby the Deer Commission could deal with the problem more easily, we should take it. It might be fine to take an ivory-tower approach and to say that we will deal with the issue separately but, as time goes by, damage continues. It would be dreadful if the Government of Scotland were to add to the damage done by deer by not accepting the amendments.
The aim of the amendments is admirable, but I will ask the committee to resist them. I should point out that it was not the Executive that rejected Bruce Crawford's original amendments; the committee rejected them for consideration in this legislative provision.
The amendments aim to simplify the Deer Commission's powers of compulsion, but we do not think that that is necessary. I accept that the commission has not so far used its ultimate powers of compulsion under section 8 of the Deer (Scotland) Act 1996, to which Bruce Crawford referred, but that is not because of their complexity or otherwise, as was argued. It is interesting that Bruce Crawford quoted what the director of the Deer Commission said when he spoke to the committee in November, because I would like to quote from the same exchange. He stated:
"We have come close to using section 8 powers on several occasions, but have not yet done so, mostly because we managed to resolve the issue before we went down that road."—[Official Report, Environment and Rural Development Committee, 12 November 2003; c 413.]
That is an important point because the Deer Commission works mainly by consensus; it has gained respect in many fields for that approach.
The main problem that the DCS has encountered when it has considered compulsory action in the past is that evidence of damage—whether or not it is serious, which is an important point—has rarely been sufficiently robust to convince on appeal that the damage occurred and that, serious or otherwise, it was caused by deer. To counter that, the Deer Commission has more recently been working with SNH and others to improve evidence gathering to make it more robust and transparent. I would argue that that is key to enabling compulsory action to be taken where appropriate. Any difficulties that have been identified in the past have arisen more as a result of the lack of convincing evidence than from difficulties with the process.
Indeed, as members are probably aware, improved evidence collation recently allowed the Deer Commission to use existing emergency powers under sections 10 and 11 of the Deer (Scotland) Act 1996 to act quickly to remove deer that were endangering an internationally important woodland at Glen Feshie. Both sections require the commission to be satisfied that deer are causing serious damage before it can act.
Natural heritage interests were protected using existing compulsory powers and without the need for the 1996 act to be amended. The action that was taken supports an on-going voluntary agreement with the local estate under section 7 of that act. I am assured that all the necessary warnings were given and that high priority was given to deer welfare during the process.
As Bruce Crawford said, amendments 235 and 237 aim to remove the requirement for the DCS to prove serious damage. As I said earlier in relation to Glen Feshie, the Deer Commission has shown that it can use its regulatory powers even with the requirement for evidence of "serious damage" being in place. Proving damage requires a robust scientific case to be made before compulsory action can be taken. That is a fair and reasonable approach; after all, we are talking about the exercise of compulsory powers. It is important to recognise that exercise of those powers by the Deer Commission is a serious matter and that their use in targeting serious damage is paramount when other methods have failed.
Amendment 236 aims to limit the right to object to only the landowner or occupier on whom a control scheme will take effect. Although that is fair enough, as they are the principal persons who would be likely to make an appeal, it is unclear what advantage amendment 236 would bring. Ministers already have powers to disregard what can be described as frivolous objections.
Importantly, all three amendments leave in place the requirement for evidence of "serious" damage to agriculture and woodlands, yet that is the requirement that was deemed to be the problem. It would still be necessary for the Deer Commission to be satisfied that deer were causing "serious damage" to woodland or agricultural production before a control scheme could be made on either of those grounds. Therefore, if the amendments were enacted, inconsistencies would be left in the 1996 act for no reason. Arguably, the amendments would also make the act more complex, although I know that that is not Bruce Crawford's intention.
Considering the issue in the round, I dare to say that to amend the Deer (Scotland) Act 1996 in this way smacks of a piecemeal approach and a rushed job, and risks future dissatisfaction on the part of the very interests that the amendments are intended to placate. The DCS is taking the appropriate action to address deer damage where there is clear and transparent evidence that it is affecting important sites, as in the example that I gave of Glen Feshie. The amendments would make no material improvement to that on-going work. I suggest that the committee allows the DCS to get on with the job in partnership with SNH and other land managers.
I ask Bruce Crawford to withdraw amendment 235 and not to move amendments 236 and 237. I say to him that, if the DCS were to return at a later stage with clearer evidence that the legislation cannot be made to work, we would look at it again. We promised in the department's response to the Deer Commission for Scotland that we would re-examine the legislation.
I am grateful to Bruce Crawford for lodging an amendment, but I regret that I must ask him to withdraw it.
I recognise that the clerks advised us that this issue was outwith the scope of the bill—I am not seeking to suggest otherwise. I was trying to reinforce the point that the bill has been drafted so tightly that it is almost impossible to amend it significantly and to lodge amendments that would have produced a better solution. I accept what the minister has said on the matter.
The minister said that the Deer Commission for Scotland has come close to using these powers on a number of occasions, which is correct. However, it has hesitated about doing so because serious damage requires to be proved. Although convincing a court that there has been damage, rather than serious damage, is still difficult to do, such a provision would have made it much easier for the commission to proceed. It is all but impossible to produce evidence of serious damage; it is much easier to produce evidence of damage.
In the case of Glen Feshie, emergency powers were instituted and used, rather than powers that were considered in a proper inquiry process as required by section 8 of the Deer (Scotland) Act 1996. I congratulate the Deer Commission for Scotland on using the powers in the way in which it did.
The minister has almost conceded that, under amendment 235, only owners or occupiers would be able properly to appeal. He said that he would be able to knock out any objector who was seen to be spurious, although he did not use that word. However, that would still allow someone from outwith an area, who was not an owner or occupier and had no real interest in a case, but who could make a material argument for being an objector, to object—whether they came from Kirkwall or from Kent. I am not convinced that my argument was properly rebutted.
The minister suggested that the amendments are a rushed job. I do not think so and take exception to that phrase. We took a long time over trying to find a way around the tightness of the bill.
I am glad that the minister has said that he will re-examine the issue. Before I decide whether to withdraw the amendment, I would like to press the minister on one issue. The Deer Commission for Scotland's submission to ministers contained considerable evidence indicating why it would like the legislation to be changed. What evidence would the commission have to produce to persuade the minister that the legislation needs amended?
My final point relates to the issue of serious damage. When I spoke to my amendment, I conceded that it would not have an impact on agricultural production, including production of crops or foodstuffs, and that its impact would be limited to issues relating to natural heritage. We face that problem precisely because of the tight way in which the bill has been drafted. I accept that our agreeing to the amendment would not produce the tidiest piece of legislation, but it would produce a better position than exists at the moment.
Bruce Crawford has made a couple of points relating to our dialogue with the DCS. The DCS saw its recommendations as an early stage in what it perceives to be an on-going process. It has not expressed concerns about the distinction between serious damage and ordinary damage that Bruce Crawford highlighted. Had it done so, I might have taken a different approach to the amendment. Like the convener, I remain of the opinion that the bill is not the appropriate legislative vehicle for the change that the member seeks.
That is not the point on which I would like you to comment. You may deal with the issue of evidence, if you wish.
New-style and robust evidence is in the process of being gathered and will overcome the difficulty that has been identified. As we promised in the department's response, were the DCS to provide clearer evidence that existing legislation cannot be made to work, we would examine that legislation specifically.
Okay. In the light of that, does Bruce Crawford want to press or withdraw his amendment?
The Deer Commission for Scotland's written evidence says that it wants a less convoluted and more transparent method of enforcement than that provided in section 8 of the Deer (Scotland) Act 1996. I have heard nothing to dissuade me from pressing my amendment.
The question is, that amendment 235 be agreed to. Are we agreed?
No.
There will be a division.
For
Cunningham, Roseanna (Perth) (SNP)
Gibson, Rob (Highlands and Islands) (SNP)
Scott, Eleanor (Highlands and Islands) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 235 disagreed to.
I recognise the result of that vote as well as anyone else, but I hope that the minister has listened to today's debate and will give the Deer Commission for Scotland a real opportunity to change things at an appropriate time in future.
Amendments 237 and 236 not moved.
Amendment 252 moved—[Allan Wilson]—and agreed to.
Schedule 7, as amended, agreed to.
Section 56—Interpretation
Group 6 is on biodiversity interpretation. Amendment 87, in the name of Roseanna Cunningham, is in a group on its own.
Amendment 87, which arises directly from the recommendation in paragraph 31 of our stage 1 report on the Nature Conservation (Scotland) Bill, reflects the committee's concern about the lack of a definition of biodiversity in the bill. Biodiversity, of course, is at the heart of the bill.
The minister will respond by saying simply that there is already phraseology in the bill that says that we will "have regard to" the United Nations Convention on Biological Diversity. However, with my lawyer's eyes and intellect, I am bound to say that using the words "have regard to" is not the same as enshrining a definition. Those words allow a get-out. Why is such a get-out—because that is what it is—deemed necessary in Scotland when, paradoxically, it was not deemed necessary in England and Wales in the Countryside and Rights of Way Act 2000? The English and Welsh legislators do not seem to think that they need a get-out clause, but we in Scotland apparently need one.
The minister may have a good reason for believing that we need a get-out clause. If there is a good reason, I would like to hear it. If we do not put the definition of biodiversity clearly in the bill, we will allow a loophole. The minister knows that. It is inexplicable that we should proceed on the present basis when biodiversity is meant to be the core of the bill.
I move amendment 87.
I am relieved that Roseanna Cunningham stopped at that point; I agree with her totally on the principle of including a definition, but if she had gone on much longer, I might have had to disagree with her in a vote. Roseanna raises an important point that the committee raised at stage 1 and I am not sure that the minister's response was all that convincing. Although I do not necessarily sign up to the emotions that were expressed in Roseanna's remarks, I agree that it would be useful to have a definition in the bill. The place where Roseanna has suggested that we amend the bill is a good one. We discussed that briefly at the start of stage 2.
It is important to draw people's attention to what biodiversity means. Many people find the concept quite straightforward once it has been explained to them, but getting our heads round it is quite an issue. For organisations, it is important that there is a clear definition of biodiversity in the bill, with the caveat that, should the definition from the United Nations Convention on Biological Diversity change over time, our act should be changed. We should support amendment 87.
All I want to say is, "Ditto." The committee was of the view that we should have a definition to tie down what we mean by biodiversity. I am glad to see amendment 87. As the convener said, it is time-proofed—if the convention changes, the act will change. I am happy to support amendment 87.
I share your view, convener, that Roseanna Cunningham's contribution was in danger of becoming an example of how not to win friends and influence people. However, I share her desire to ensure that there is something that she called a no-get-out clause, but which I call no ambiguity about any of the aims in the bill. I remain of the opinion that a definition is not strictly necessary from a legal perspective, but if committee members or others feel strongly that the term "biodiversity" should be defined in the bill, I am happy to accept amendment 87.
Roseanna Cunningham has elicited total support today.
Amendment 87 agreed to.
Group 7 is on the interpretation of interest in land. Amendment 226 is in a group on its own.
Amendment 226 is a technical amendment that will provide clarification by defining "interest in land", which appears in a number of places in the bill. The intention has always been that it should be understood to mean a legal interest in land. Amendment 226 puts that beyond any doubt.
I move amendment 226.
Amendment 226 agreed to.
Amendments 88 to 92 moved—[Allan Wilson]—and agreed to.
Group 8 is on the interpretation of damage to protected natural features. Amendment 227 is in a group on its own.
Amendment 227 fulfils a commitment that I gave to the committee on day 2 of stage 2, when we debated Nora Radcliffe's amendments dealing with disturbance in SSSIs. Nora Radcliffe suggested that the bill needed to do more to deal with situations in which birds and animals in an SSSI are subjected to significant disturbance. I hope that she agrees that amendment 227 picks up that proposal. The objective is to ensure that significant disturbance to fauna can be clearly understood as damage—dare I say it—to the SSSI, even when no physical destruction has taken place. If birds and animals are being driven away from an SSSI, the site will no longer be of special scientific interest. It is clear that that is damage, and it will be covered by the existing provisions in part 2, including the offence provisions and the penalties that are set out in section 19.
I move amendment 227.
I welcome amendment 227, which will enhance the bill. I am happy to support it.
Amendment 227 agreed to.
Section 56, as amended, agreed to.
Section 57—Short title and commencement
Group 9 is on commencement. Amendment 248, in the name of Nora Radcliffe, is in a group on its own.
Amendment 248 intends to ensure that the amendments that we have made in relation to wildlife crime become effective immediately upon royal assent. That provision would cut out the delay that would otherwise occur while we waited for ministers to say that they wanted the measures to come into effect. We want the extended sanctions to be effective as soon as possible. Royal assent will probably come in the late spring, which would mean that the measures would be in effect in time for this year's breeding and flowering season.
I move amendment 248.
I recognise the point that Nora Radcliffe is making and I share her enthusiasm for having the measures in the bill come into force as soon as possible. The step that Nora Radcliffe proposes has been taken before when there was a pressing case for immediate implementation. Indeed, the high-priority wildlife crime measures in last year's Criminal Justice (Scotland) Act 2003 came into force on royal assent. However, that was very much the exception to the rule and I had to secure Cabinet approval in that regard. As members know, the norm is to allow a two-month period after royal assent before bringing provisions into force. That delay allows everyone who is affected by the new legislation to find out about it and to make appropriate arrangements.
As Nora Radcliffe will understand, it is not only wildlife criminals who are affected by the provisions; the police, the courts, Scottish Natural Heritage and others all have to prepare for the effect of the new legislation, not least in relation to the provision of training for the sheriffs and others. We should allow them adequate time to do so and I believe that the two-month period is appropriate.
On that basis, and with those assurances, I ask Nora Radcliffe to withdraw amendment 248.
If royal assent is given in late spring, the following two months are significant. If the two-month period covered November to January, the question of getting the measures into law as quickly as possible would not be as important.
If amendment 248 is not agreed to, the provisions will come into effect when ministers say that they will. Is there any scope for that two-month period being reduced? Does the minister intend to consider a reduction in that period?
That would be a Cabinet decision and I could not commit the Cabinet in advance. The normal period is two months and I do not think that it is unreasonable to expect that those who will be affected by the bill should be given two months to take account of its provisions. There is a balance to be struck, but I cannot commit the Cabinet to doing anything.
I will withdraw my amendment and have a think about the matter before deciding whether to bring the issue back at stage 3.
Amendment 248, by agreement, withdrawn.
Section 57 agreed to.
Long Title
Amendment 93 moved—[Allan Wilson]—and agreed to.
Long title, as amended, agreed to.
That ends our stage 2 consideration. Our amendments will be incorporated and the bill will be reprinted before being further discussed in the chamber at stage 3.
Meeting suspended.
On resuming—