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Baroness Farrington of Ribbleton: The intention is not to narrow down but to continue to focus work in the areas of priority—not to change to a further diminution but to ensure that we continue to build on the success of focused action plans.
Baroness Miller of Chilthorne Domer: I shall bear that reassurance and the comment of the noble Viscount, Lord Eccles, in mind. I shall read the Minister's reply and consider whether, in the light of the information that Defra currently amasses, I want to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 281 had been withdrawn from the Marshalled List.]
Clause 44 [Enforcement powers in connection with pesticides]:
The Duke of Montrose moved Amendment No. 282:
The noble Duke said: In moving Amendment No. 282 I wish to speak also to Amendment No. 288.
Clause 43 makes it crystal clear that pesticides declared by the Secretary of State to be harmful to wildlife will not necessarily be illegal in any other context. Hence an inspector entering premises in search of those pesticides will, in effect, be saying, "I believe these prescribed substances are within these premises and I believe they are being used against wildlife".
Under the terms of Clause 43 it will not be legal for an inspector to enter premises in search of these prescribed substances unless he believes they are being used illegally. There is a world of difference between an inspector entering, say, a farm and demanding to search a barn because he is seeking illegal pesticides, for instance, alfa chlorose—and a barn would be quite a good place to find some if any were present in the area—and that same inspector entering the farm and demanding access to all the land and buildings because he believes that certain pesticides are present and are or have been used against wildlife. In effect the burden of proof will not be possession, it will be usage. The purpose of the search is necessarily linked to the usage charge. We believe that in those circumstances possession of a search warrant is a minimum requirement.
In another place my honourable friend James Paice raised the question of a six month delay in implementation to deal with publicity. How do the Government propose to publicise the changes that this clause will make to the keeping of particular pesticides, not just by gamekeepers but also by members of the
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general public? As this Bill stands, under Amendment No. 288 the Secretary of State may list pesticides which are harmful to wildlife, and that no one may have in their possession until he can prove that he has it in connection with one or more specified purposes. Any person authorised by the Secretary of State or the National Assembly for Wales is to be classed as an inspector and will have the right to enter any premises, which means the same as all premises, to seek out listed pesticides.
We have seen many Defra Bills, but I cannot recall one where the definition of "premises" did not exclude private dwellings. In fact, Schedule 5 to this very Bill—on page 58, which deals with group 1 offences, and on page 59, which deals with group 2 offences—contains the words:
This exclusion should extend on the face of the Bill to the definition of premises for the purposes of Clause 44.
At the sixth sitting in Committee in another place, the Minister, Jim Knight, said:
"If it is a door to a dwelling, they must have a warrant from a justice of the peace, but if it is a gate to premises, such as to land or to a shed, they can go in and inspect".—[Official Report, Commons Standing Committee A, 28/6/05; col. 187.]
As the Minister stated that in Committee, I am surprised that the Bill as it stands does not clarify the situation for private dwellings.
When opening the debate on Clause 48 in another place, my honourable friend Jim Paice said:
"I make it absolutely clear that the Opposition condemn anybody who uses poison to kill birds of any species . . . It is already an offence to set poison for a bird and has been for 24 years".—[Official Report, Commons Standing Committee A, 28/6/05; col. 162.]
The Minister will not be surprised when I express our concerns that Clause 43 as it stands reverses the burden of proof. In this instance, a person is guilty of an offence if he has in his possession a pesticide containing an ingredient that is prescribed for the purposes of this section. The onus is clearly on the individual to prove that he had just cause to have this particular pesticide and to justify its intended use.
We are grateful to the Minister for the other government amendments in this group, Amendments Nos. 283 to 285. They are a welcome response to some of the concerns expressed in another place and by outside organisations. However, we still feel that, at the very least, a search warrant should be sought before entering premises is undertaken. I beg to move.
Earl Peel: Before speaking to Amendment No. 285A, which is in this group, I should like to say to the Minister that I have withdrawn Amendments Nos. 281, 286, 287 and 289. I did so because we were satisfied and grateful for Amendment No. 283, which the Minister has introduced. I should like to add that
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I entirely endorse what my noble friend has just said about this clause. There are real difficulties here that the Government will have to address.
My Amendment No. 285A deals with the very wide-ranging new powers that the Bill gives to pesticide inspectors. It is important—indeed, essential—that the inspectors carry out their duties with great diligence and proper consideration. The National Farmers Union—and I declare an interest as a member of that body—rightly pointed out in its brief:
"We are concerned that the person who legitimately has a prescribed pesticide may be treated unfairly and penalised."
Therefore, it is essential that,
That point is extremely well made. Amendment No. 285A would ensure that such an inspector must have regard to any relevant code of practice. I welcome government Amendment No. 283 and the subsequent amendments, but they do not go far enough; it would be extremely helpful if the code of practice could be adhered to in the Bill.
I shall raise one other issue. Given that the Government have stated in the Explanatory Notes that they intend to publicise the pesticides that are to be included on the precluded list, could that list be circulated to the relevant representative organisations and notices placed in the appropriate press in addition to it being made available on the Defra website? I ask the noble Lord to consider that request, as it would be extremely helpful.
3.45 pm
Baroness Miller of Chilthorne Domer: We concur with some of the concerns raised, and we look forward to hearing from the Government.
Lady Saltoun of Abernethy: I am not sure whether this is the right moment to raise this, but when I was listening to the noble Duke moving the amendment I glanced at Clause 43(1), and I think that I have found a misspelling:
"A person is guilty of an offence if he has in his possession a pesticide containing an ingredient that is prescribed for the purposes of this section by an order made by the Secretary of State".
Do the Government mean "prescribed" as in what a doctor does when he prescribes medicine for you, or do they mean "proscribed"—which I think is what it ought to be—which is when you forbid the use of something?
Lord Bach: Up until a moment ago I thought that I had the answer to this group of amendments, but the last contribution by the noble Lady has slightly shaken me. Perhaps I will come back to that in due course, but I have a nasty feeling that she is right.
I shall first deal with this important group of amendments. Clause 44, which deals with the powers available to inspectors when investigating the possession offence in Clause 43—which is important—appears to have caused a fair amount of concern throughout its passage through Parliament, as the
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noble Duke mentioned, much of which we believe to be based on comparisons between this offence under Clause 43 and welfare offences under Defra's Animal Welfare Bill. Such comparisons are flawed and are not comparing like with like. However, the Government have recognised the overall strength of feeling on this matter, and we have tabled three amendments in an endeavour to go as far as we believe sensible to enshrine safeguards. I will speak to those amendments in a moment, but I will first address the three related non-government amendments to this clause, Amendments Nos. 282, 285A and 288.
Amendment No. 282 seeks to restrict the powers of entry available to inspectors when they are investigating the offence of possessing a proscribed pesticide—the Clause 43 offence—by requiring them to have obtained a warrant from a justice of the peace. Let me make it absolutely clear that inspectors acting under this clause do not have powers of entry into private dwellings without first having obtained a warrant from a justice of the peace. By virtue of Clause 44(4), paragraph 7 of Schedule 2 to the Food and Environment Protection Act—I admit that is not the easiest reference in the world—that applies to inspectors enforcing this offence as it does to inspectors operating under Part 3 of the Food and Environment Protection Act 1985. Paragraph 7 states:
"An officer may only enter a dwelling for the purpose of performing his functions . . . if a justice has issued a warrant authorising him to enter and search that dwelling.
It goes on to list the circumstances in which a justice may issue such a warrant; namely, where an inspector has reasonable grounds for believing that there is present in the dwelling anything to which his functions relate and either it is not practicable to communicate with any person entitled to grant entry to the dwelling, or such a person has unreasonably refused entry, or such a person is unlikely to grant it unless a warrant is produced, or the purpose of entry may be frustrated or seriously prejudiced unless an officer arriving at the dwelling cannot obtain immediate access to it.
It would in our view be inappropriate to seek to restrict inspectors' powers of inspection to an even greater degree by requiring them to obtain a warrant before they can enter any premises. "Dwelling houses", yes of course; but we think that "any premises" goes too far. Pesticide inspectors carrying out enforcement activities under their existing powers under the FEPA are already allowed entry to land—other than private dwellings—without the need for a warrant. The purpose of the current power is to check that storage and use of pesticides are in compliance with Defra's Pesticides Safety Directorate approvals. Therefore, we fail to see why this offence should be treated any differently from other pesticides offences in this regard.
Amendment No. 285A seeks to introduce a provision for inspectors to have regard to any relevant codes of practice issued by the Secretary of State when exercising their powers. I have thought long and hard about what could possibly justify the power that we were going to take upon ourselves in regard to that. The noble Earl is, in my view, absolutely right. As the
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wording of his amendment may not be perfect, I invite him to withdraw his amendment today and we will come back at Report with, we hope, agreed wording. He seems to have a good point when he says that, if there is a code of practice, which there is, inspectors should have regard to it. I hope he will accept that we agree with his commonsensical attitude to that.
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