Clause 43 - Possession of pesticides harmful to wildlife

Natural Environment and Rural Communities Bill – in a Public Bill Committee am 12:00 pm ar 28 Mehefin 2005.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 12:00, 28 Mehefin 2005

I beg to move amendment

No. 144, in clause 43, page 15, line 21, at end insert

‘with the intention of committing any offence under Part 1 of the Wildlife and Countryside Act 1981 (c. 69), the Conservation of Seals Act 1970 (c. 30), the Deer Act 1991 (c. 54) or the Protection of Badgers Act 1992 (c. 51)’.

Photo of Eric Forth Eric Forth Ceidwadwyr, Bromley and Chislehurst

With this it will be convenient to discuss the following amendments: No. 63, in clause 43, page 15, line 26, after ‘was’, insert

‘or had been in the past’.

No. 64, in clause 43, page 16, line 2, at end insert—

‘(7A)An order made under subsection (1) shall come into force on such date as may be prescribed by the Secretary of State being not less than six months from the date on which it is made.’.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I make it absolutely clear that the Opposition condemn anybody who uses poison to kill birds of any species. I wholly support the Government’s objective in tabling the next few clauses. As an aside—this will come up again later—I am slightly concerned that the Government did not consult on the provisions before including them to ensure that they got them right. There was some discussion, but it was not a consultation. The reason why I am concerned, as I am about clause 46 and the protection of nests, is that I am not sure that the proposals will address the problem that I readily accept exists.

It is already an offence to set poison for a bird and has been for 24 years. It is also already an offence to possess a large number of pesticides that have been banned in preceding years. In particular, carbofuran has been most commonly used for poisoning birds of prey. Although the problem is not restricted to birds of prey, their protection is the principal objective of the clause. In 2003, which is the latest year for which I could obtain figures, carbofuran was used in 35 of the 58 incidents across the UK. It is already an offence to possess it, so the clause is not necessary to deal with the pesticide.

If we narrow the focus to England and Wales, which is what the Bill applies to, we see that carbofuran was used in three of the eight cases in England and two of the seven in Wales. On top of that, two other pesticides—mevinphos and alphachloralose—have also been withdrawn from the market, so it is also an offence to possess them. They account for another five of the 15 cases in England and Wales. If we take out the pesticides that have already been banned, we can narrow down the problem considerably.

The Royal Society for the Protection of Birds says in its report on bird crime in 2003, from which I have obtained all these statistics:

“We are concerned that withdrawing pesticides that are most frequently abused one at a time has not solved the problem. Instead alternative products have been found.”

It means by that that it supports this proposal which would, effectively, ban any pesticide that an individual has no good reason for possessing. However, I believe that the phrase

“Instead, alternative products have been found” demonstrates the big loophole in the legislation, in that those who want to poison raptors or other birds of prey will continue to find means of doing so. A large number of toxic pesticides will still be available, and people will have no difficulty in convincing courts that they are legally entitled to have them. For example, phostoxin is used for rabbits; warfarin and other anticoagulants and all sorts of other chemicals are used against rats and mice; and strychnine is used against moles. That is without even considering traditional agricultural pesticides such as insecticides. One that is commonly referred to is temic. I am not aware that there has ever been a case of the poisoning of a rat or a bird of prey with temic, but I readily accept that that is possible, because it is a noxious pesticide. However, temic is legal, and is approved for use on potatoes. Therein, again, lies for me the problem with this approach. Anybody who has some temic, even if his intention is malign, has only to say that he got it for his mate because he grows potatoes in his allotment and that he therefore has a justification for possessing it. It is not that I do not support the objective, but I have a fundamental problem believing that the legislation will make a jot of difference. It is legislating on the “something must be done” principle rather than because it will make any difference.

There is already a mass of legislation that deals with this sort of thing. The RSPB document refers to the fact that people have been prosecuted for the illegal storage and use of pesticides—beyond the issue of poisoning of birds, there is the matter of illegal storage. People are already being prosecuted for other offences under the Food and Environmental Protection Act 1985. Having spent three years as shadow spokesman on police and crime, and having sat in this and other Committee Rooms dealing with criminal legislation, I am averse to the idea that we need more laws and to ban this and that. It is a bit like antisocial behaviour: we keep making more individual bits of behaviour illegal, without addressing the fundamental issue.

I do not want to digress, and I know that you will not allow me to do so, Mr. Forth, but that is the problem that I want to turn to now, and I hope that you will let me make a couple of points on the issue that clause 43 seeks to address. It will be mirrored when we come to clause 46 and the matter of nests.

I am the first to accept that there is a problem with the public image of gamekeepers, either because of Lady Chatterley’s Mellors—perhaps that is an unfortunate word for some of us who have been in this House for a few years—

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

“Don’t print that,” as they say.

More to the point is the image of the old-fashioned gamekeeper’s gibbet, with pests and vermin hanging on barbed wire and things like that. Of course, there is also the image that grouse moors are the preserve of the very wealthy and rich. Yes, they are. Few people can afford to go shooting grouse, and I am not one of them. Nevertheless, as my hon. Friend the Member for Scarborough and Whitby (Mr. Goodwill) will vouchsafe from his constituency, it is terribly important economically in such areas. There is ample evidence that the prosperity of some rural communities goes hand in hand with the prosperity of the shooting community, particularly where grouse moors are concerned.

Photo of Peter Atkinson Peter Atkinson Whip, Whips

My constituency contains the best grouse moors in England. In the remote parts of the north Pennines, the Allen valleys, they contribute about £3 million a year to the local economy, and that is a huge amount and is of huge importance.

Photo of Eric Forth Eric Forth Ceidwadwyr, Bromley and Chislehurst

Order. I am hoping that the hon. Member for South-East Cambridgeshire will persuade me fairly quickly of the connection between grouse moors and clause 43. I urge him to do that quickly or to move on.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am happy to do so, and I appreciate that there are not too many grouse moors in your constituency, Mr. Forth. Nevertheless there is a widespread perception—and evidence from the RSPB’s papers—that many incidences of poisoning of birds of prey are taking place on grouse moors. That is the clear connection.

What I have described may be the public image, but the reality—apart from the economic issues, which I am grateful to my hon. Friend for endorsing—is that the issue of wildlife relates more strongly to this section of the Bill. There is ample evidence that keepered moors are more beneficial for the overall panoply of wildlife than unkeepered moors.

Moors that are managed for grouse typically have a wader population—golden plovers, lapwings and curlews—of up to five times the population of unkeepered moors. Part of that is the control of ground vermin, particularly foxes and crows, which persecute such birds, particularly ground-nesting birds. If we look at the north Pennines area of special protection, we find that curlews are 18 times more prevalent than in the Berwyn mountains in Wales, which are run as a reserve. The merlin, which is the subject of an amendment in this group, is twice as common on managed moors as unmanaged moorland.

All those other birds—of course, the merlin is a bird of prey—benefit from the management of a grouse moor. Nowhere was that emphasised more clearly than in the Langholm study carried out in the 1990s on grouse moors in Dumfriesshire. It clearly showed the effect of the prevalence of the hen harrier, which is one of the most sensitive birds and the victim of a number of such offences in the past. When the hen harrier population rose alongside the grouse population until the tipping point and then got so high that it began to   damage the grouse population, the viability of the moor diminished and the owners had to withdraw the gamekeepers as they could no longer justify them. Immediately, of course, the other predators came back on the scene and the population of hen harriers crashed. It is now down to two or three pairs on that moor; there were several times that number.

I use that point to illustrate that such factors all work together. The real solution, and I apologise if I have been tempting providence, Mr. Forth, is that we have to persuade the people who carrying out such poisonings—I accept that it is going on—that there is a better way of resolving the fundamental issue, which is seen as a conflict, although I do not believe that it is. I would like to see much more of a rapprochement between those involved in managing such areas.

I happen to think that we need to examine the concept of relocation when numbers of raptors in certain areas get above a level that is sustainable alongside all the sporting activities. I shall now turn, I am sure with your gratitude, Mr. Forth, to the individual amendments in the group, but I just wanted to set the wider context of my thoughts and concerns.

Amendment No. 144 would require the proof of intent. I am concerned, as hon. Members often are, when we seek in the House of Commons to reverse the burden of proof. I know that we have said in other legislation, “You are guilty unless you can prove your innocence”, or in other words we have told people that unless they can prove that they have a good reason for having something we will assume that they are guilty. I believe that that is a fundamental breach of the traditional way that we deal with criminal law. As I say, this is not the first time that it has been mooted—it has happened before—but each time it is another step towards a wholly different approach to criminal law, which we have traditionally rejected in this country. However, that is clearly what clause 43 says when it specifies:

“A person is guilty of an offence if he has in his possession a pesticide”— and so on.

Later on, some defences are laid down, but the onus will be clearly on the individual to prove that he had just cause to have this particular pesticide or else it will be deemed that he had it for a malign purpose or criminal activity. That is wrong, which is why there should be an attempt to prove intent in the clause. I have already explained why the clause is unlikely to produce the results that we want: a reduction in bird poisoning incidents. I am not convinced that the clause will have that result and with respect to civil liberties and the right way to address criminal law, the obligation to show intent should be included.

Amendment No. 63 would insert into subsection (3), where a person is able to prove

“that his possession of the pesticide was for the purposes of doing anything in accordance with”,

and so on, a need to reflect that it is easy to accumulate old pesticides and a few cans or tubes of something in the shed. I suspect that any Committee member who is a gardener is conscious of this. The amendment would   put into the clause a defence that something had been used in the past for one of the purposes of doing anything in accordance with the legislation. It is a perfectly reasonable position to adopt simply to say, “I’ve got some left over. I’ve had it a few years because I used to use it for X, Y or Z.”

Obviously, if it is illegal to possess that pesticide under other legislation, such as the Food and Environment Protection Act 1985 or other regulations, it is illegal to possess it: it is an offence. We know that, but I am concerned about the many other pesticides that are legal to possess in cases where, being reasonable, the person may have had a reason for having them in the past rather than the present.

Amendment No. 64 would introduce a six-month delay in the commencement in order to provide time for the knowledge and information to be satisfactorily put out and publicised, in what would be very remote areas, among the communities where such problems arise, to ensure that people know that the law has now changed, to whatever extent it ends up being changed. That will also give them time to dispose of whatever they have that they may wish to dispose of. Of course, we do not want people simply to put it in a dustbin or pour it in a ditch because of its nature. They will have to comply with environmental legislation when disposing of unwanted pesticides. It is perfectly reasonable—I understand from conversations that it would be acceptable to some of the outside bodies involved—to build in a delay before the offence comes into force in order to give people time to deal with whatever they may have in their possession.

The three amendments are designed simply to improve the quality of the legislation. Some of the other groups that I shall refer to in relation to this and other matters are also there purely to try to improve the quality of the legislation, as we are all required to do. That is the purpose of Committee scrutiny. However, at the same time, I have serious reservations about whether clauses 43 and 44 will achieve the results that the RSPB, the Minister, the vast majority of the sporting community and I want.

None of us wants people to poison birds of prey, particularly those that are rare. It is even dafter to poison birds of prey such as the red kite, which is the subject of a massive release and breeding programme. We have recently successfully reintroduced it into this country and it is a delight to see. It is not a problem. It feeds off carrion. Poisoning it is clearly daft, but sadly some people see fit to do so. As I said when introducing my remarks, I wholly condemn them and they need to be prosecuted, but I am not convinced that this provision will achieve that. If we are going to include it, it needs some amendments.

Photo of Robert Goodwill Robert Goodwill Ceidwadwyr, Scarborough and Whitby 12:15, 28 Mehefin 2005

First, I will establish my Sheffield credentials. As a candidate in the 1998 South Yorkshire European by-election, I had much experience of the rural parts of South Yorkshire in particular—we could not find too many Conservative voters in the urban parts. Happily, 12 months later, I was elected to represent the entire region, including Sheffield, in the European Parliament. I am pleased   that the Minister has followed the precedent of Arthur Scargill, who relocated his headquarters to Sheffield, but that is another story.

I endorse the comments made by my hon. Friend the Member for South-East Cambridgeshire about his amendments. I am concerned that we may be unwittingly criminalising people who are acting responsibly. There is a fragile balance—certainly on the North Yorkshire moors—and were it not for the activities of moorland gamekeepers, that balance would quickly mean that the moors would revert to bracken and scrubland. All the degradation of the environment that we have heard about from my hon. Friend would take place. It is only through burning and the control of predators that we can maintain the red grouse population on the moors. That bird cannot be reared artificially. It is only by maintaining the environment so that that bird can thrive that there is an income for the North Yorkshire moors and other moorland areas that means that those rural communities can be sustainable.

The vast majority of gamekeepers behave responsibly and use products legally. The reasonable use of these pesticides should be allowed to continue. In North Yorkshire in particular, we have had some very mild winters. We have a large rat population and the use of poison to control those rats, which can eat eggs, is important. Of course, the number of ways of controlling foxes has been somewhat diminished in recent months.

Pesticide legislation is complex and the supply is already well controlled. As a farmer, I have a pesticide store. I am licensed in the use of pesticides and, like the vast majority of farmers and gamekeepers, we adhere to the legislation. It is already an offence under section 5 of the Wildlife and Countryside Act 1981 to set poison with the intention of killing a wild bird. Many of the problems, particularly when they occur in relation to red kites, are with raptors eating carrion that has been poisoned. The Bill would not have any effect on carrion that had been legally poisoned and then became the food of raptors.

As has been said, many farmers and gamekeepers store unused stocks of pesticides. The advice from the Department for Environment, Food and Rural Affairs is to use up stocks of pesticides for the use that they are intended and not to dispose of those chemicals. Therefore, it is likely that there will be a number of chemicals in stores throughout the country.

That can lead to problems because of product withdrawal. Products are often withdrawn not for reasons of safety but for economic reasons—the manager deciding that it is no longer economically viable to produce the products. Even more complex for the person on the ground is the problem of generic products. We may well find that a number of products available contain the same active ingredients. When one of those products is withdrawn, it is difficult for the person to realise that the one in his store is the one that is withdrawn. The fact that the product number on the packaging is obsolete means that he has a product that   cannot be used. The six-month moratorium to allow people to realise which products are available and which are not is a good idea, particularly as many such products have similarly sounding names.

I endorse the comments that my hon. Friend made about the amendments. It would make the clause much more practicable and workable. The vast majority of people in the countryside want to achieve the same aims as do the Government. Using the amendments would help people to see a reasonable side to the Government by making the proposals workable on the ground.

Photo of Angela Smith Angela Smith Llafur, Sheffield, Hillsborough

I start by promising hon. Members that I will not make any references to Sheffield except warmly to welcome the glowing testimony to the city that has been given and to object to the comments made by the hon. Member for Sherwood, who claimed Robin Hood for Nottinghamshire. I state once again that Robin Hood was a Yorkshireman. He was born in the village of Loxley in my constituency. The hon. Member for South-East Cambridgeshire was absolutely right about Cambridge. I lived there for four years—in Romsey, Newnham and Cherry Hinton. It does indeed take 15 minutes to go from one street to another in such a beautiful city.

I support clause 43. It closes a loophole in the law. At this point, I should declare my membership of the Royal Society for the Protection of Birds, the Woodland Trust, the National Trust and the Ramblers Association. I support the clause because, clearly, the use of pesticides to poison wildlife is a danger not only to birds of prey but to people and, particularly, to children, who are much less aware than adults are of the dangers represented by poisoned baits. The pesticides also pose a danger to working dogs and pets. So the problem is relevant to us all, not only those who are interested in wildlife.

The pesticides can be absorbed through the skin.

Photo of Eric Forth Eric Forth Ceidwadwyr, Bromley and Chislehurst

Order. I remind the hon. Lady that the debate is specifically about the amendments. She is more than welcome to express her support for the clause when we come to the debate on clause 43 stand part, but, at this stage, I advise her to move on to talk about the amendments and to bear in mind that there is a possibility of a subsequent debate on clause stand part.

Photo of Angela Smith Angela Smith Llafur, Sheffield, Hillsborough

I apologise, Mr. Forth. I was intending to move on to the amendment.

The pesticides are a danger and can be absorbed through the skin. The amendment would, indeed, weaken the clause in that it would negate the prosecution of many of the people who use the poisons. Although such prosecution would not solve the problem entirely, it would be a significant step in the right direction. It would not eradicate the problem of poisoning, but it would reduce it.

The hon. Member for South-East Cambridgeshire referred to the fact that individual bits of behaviour are increasingly being made illegal by the Government. I find these individual bits of behaviour abhorrent. The   holding of poisons not needed for a regulated purpose is unacceptable behaviour that is highly dangerous and should be banned. The fact that some people have held such pesticides in the past and may have them in their garden sheds strengthens the need for the clause and reduces the need for the amendments. If people have them in their garden sheds, we must deal with that because garden sheds can be broken into. The poisons can be accessed in that manner and can be used for purposes that the clause is trying to prevent.

One hundred and six red kites were found illegally poisoned between 1989 and 2004. As far as the RSPB is concerned, that is only the tip of the iceberg and the true number is much higher. I hope that hon. Members will refuse to support the amendment, because those with a legitimate need to own such pesticides have a defence under subsection (3). We must move on the issues, and restrict the number of pesticides and poisons that can be used for such destructive purposes.

Photo of Madeleine Moon Madeleine Moon Llafur, Pen-y-bont ar Ogwr 12:30, 28 Mehefin 2005

I rise briefly to speak to the amendments, and declare my interest in that I, too, am a member of the RSPB, and the Wildfowl and Wetlands Trust, as well as my local wildfowl trust. I was concerned to hear the vision expressed by the hon. Member for South-East Cambridgeshire of inspectors trawling through the garden sheds of Great Britain looking for unwanted pesticides.

I hope that the Minister will tackle the issue of publicity in his response, and ensure that people are fully aware of the implications for the holding of pesticides that the amendment would have. We must not wrongfully prosecute people. I accept that that is a desirable, and I hope that the Government will take its responsibility to do so seriously. Members of the Committee will be aware that a number of organisations are working on the Bill, and like us, they are trawling through it line by line. I hope that the British Association for Shooting and Conservation, the Country Land and Business Association, the Countryside Alliance, the Game Conservancy Trust, the Moorland Association, the National Farmers Union and the National Gamekeepers Association will also ensure that all their members are aware that the Bill makes it illegal to hold certain pesticides without good reason. I am sorry if we are putting a burden on local government again, but it is putting provisions in place to help with the legal disposal of the pesticides. Sadly, I am sure that we are all guilty of hoarding all sorts of products in our garages and garden sheds that, for the sake of our families and the wider community, it would be better if we did not.

Photo of Peter Atkinson Peter Atkinson Whip, Whips

Apologies for my late appearance in the debate, Mr. Forth, but as the Countryside Alliance was mentioned, and as I am listed as a consultant to that organisation in the Register of Members’ Interests, I thought that I would respond to the hon. Lady. The Countryside Alliance and the other organisations that were mentioned are utterly opposed to the poisoning of birds in any way. Any respectable gamekeeper knows perfectly well what the law is. We have had an interesting debate today about grouse   moors, and the finger of suspicion always seems to point to gamekeepers who work on grouse moors. However, if one looks at the RSPB figures for confirmed wildlife poisoning incidents during 2003, there is not one involving a hen harrier. The majority of birds that were the victims of poisoning were, sadly, red kites and buzzards. No gamekeeper worries about red kites or buzzards to any extent because those birds eat carrion and do not predate on living grouse.

Photo of Madeleine Moon Madeleine Moon Llafur, Pen-y-bont ar Ogwr

I was not suggesting that gamekeepers were responsible. What I was saying was that such organisations, along with those that have lobbied us, have a responsibility to the Government to ensure that people are fully aware of the implications of the legislation, so that people are not found with pesticides that they should not have once the legislation is enacted. I was not attempting to indicate in any way that there was a hidden agenda or that gamekeepers were party to mass poisoning of wildlife.

Photo of Peter Atkinson Peter Atkinson Whip, Whips

I am sorry, but I did not mean to imply that. I had moved on and was saying that a lot of the general publicity about the poisoning of birds seems to cast suspicion on moorland gamekeepers. I was trying to refute that, as the evidence does not support it.

The job of moorland gamekeeper is a high-profile one—it is visible, as there are always visitors and walkers on the moors—and those who do it operate in a fairly public arena. The majority of birds that fall victim to poisoning are attracted by bait that is put out to catch a hen harrier. Sadly, there have been two recent cases in my constituency in the roughly same area, one of which involved a red kite. Those who engage in such activities do so for nefarious reasons. They are irresponsible people, not responsible gamekeepers.

I support the amendment that my hon. Friend the Member for South-East Cambridgeshire has tabled. We should change the burden of proof with great reluctance and only after great consideration. Curiously, the burden of proof has been reversed in much wildlife legislation in the past. There are circumstances in which we should reverse the burden of proof, but it should be manifestly obvious that a benefit would be derived from doing so. In common with my hon. Friends, I do not think that the clause will achieve such a benefit, as it is confused in its intent.

The clause confuses people who keep bits of redundant poison in garden sheds with people who deliberately poison birds of prey. Gardeners have all sorts of things in their sheds, as my hon. Friend the Member for South-East Cambridgeshire said, some of which the Bill will outlaw. Some of us do not necessarily know what ingredients the products that we own contain, but we should perhaps look carefully on some rusting tins to find out. That is not the problem, however. People do not burgle garden sheds to get poison in order to poison birds of prey. Individuals who, for various reasons, poison wild birds are perfectly capable of obtaining illegal poisons.

The vast majority of poisons on the list are already banned. Carbofuran and alphachloralose are the main examples, and they have been banned for some time. It is easy for someone who is prepared to poison birds of prey to keep a stock hidden where no one can find it. The legislation will not stop such appalling individuals. If we are to reverse the balance of proof, will we be certain of catching the bird poisoners with the clause? I doubt it.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

This has been a useful debate. I accept what the hon. Member for South-East Cambridgeshire said. He takes a close interest in such issues, and it is important to state that we share the same motivation, as do all members of the Committee.

The clause seeks to create a new offence of being in possession of a pesticide containing a prescribed substance that is harmful to wildlife. There is a genuine need to take such a step, because although it is already an offence under section 5(1) of the Wildlife and Countryside Act 1981 to use or set poisons to kill or injure wild birds, securing successful prosecutions by linking known poisoning cases to individuals has proved difficult. Meanwhile, wild birds, particularly raptors, continue to be illegally poisoned at a rate of 30 to 50 a year.

I shall give an example of the problem that we seek to resolve. My example is of a gamekeeper, although I do not seek to pass comment on gamekeepers as a whole, the vast majority of whom are highly responsible. A gamekeeper may lay poisoned bait with pesticide containing a prescribed ingredient in woodland near his pheasant pen. It may never be found, but it may be eaten by a buzzard. The buzzard is collected and found to have been killed by pesticide ingredient X. A search of the gamekeeper’s premises reveals a can of that pesticide, which he can provide no reason for having. A legitimate reason would perhaps be for the control of insects on fruit, but there are no fruit trees in the vicinity even though it is an approved pesticide and it is certainly not unlawful for him to possess it.

Although there is a link between the gamekeeper and the dead buzzard, and the gamekeeper has a motive for killing the buzzard to protect the valuable pheasants, the evidence remains circumstantial. The gamekeeper can argue that anyone could have bought the pesticide that caused the death of the buzzard. He does not have to provide a plausible reason why someone else might have done it or suggest another individual. With the new offence in clause 43, the gamekeeper will still be in the same position with regard to the offence of poisoning the buzzard, but the new offence of possessing a pesticide containing a listed ingredient without having a legitimate use for it—it is important to stress that—will be easier to prove. It will also be possible for the court to seize the pesticide concerned, thus preventing further abuse.

Photo of Peter Atkinson Peter Atkinson Whip, Whips

The problem is, as the Minister says, that there will always be products that anyone can legally possess that could be used to poison wildlife. If   one product is prescribed under the clause, the person could get rid of it, but use something else such as slug pellets for which he could claim to have a perfectly legitimate use. He could simply replace one poison with another.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I accept that to some extent we will be playing catch-up and the situation that the hon. Gentleman describes may occur. However it is incumbent on us to do what we can to frustrate this activity, which we all agree is reprehensible. An alternative would be to ban all pesticides unless the person has a legitimate use for them, but although clear, that would be disproportionate. We have to target things a little more carefully and ensure that everything we do is backed by proper evidence.

Amendment No. 144 introduces an additional element to the offence of possessing a pesticide containing a prescribed ingredient and requires that the person concerned must have intended to commit an offence under one of the listed wildlife protection Acts. It is important that there should be no doubt that possession of listed pesticides without legitimate use is an absolute offence. The offence must therefore remain one of strict liability, regardless of intent, if it is to work. This will make it easier for the general public, farmers, gamekeepers and others who are likely to be in possession of such substances to understand the law, and for the law to be enforced. It is also important that all species of wild animals and wild birds are protected from pesticide abuse. It is therefore inappropriate to limit the application of this offence to particular species.

Amendment No. 63 introduces a retrospective defence to the offence of being in possession of a prescribed pesticide without having a legitimate use for it. Clause 43 is aimed at protecting vulnerable wild animals and birds from pesticide abuse. It is not the Government’s intention to lay innocent members of the public open to prosecution. It is for this reason that the defence recognises the circumstances in which the pesticide ingredients listed on an order will be legitimately held in a person’s possession. However, once a person has no legitimate use for a prescribed pesticide, its retention cannot be justified and it should be safely disposed of.

Garden sheds have been mentioned. We should understand that only those pesticides containing active ingredients listed under the order will be covered by the clause. There will not be a witch hunt of amateur gardeners for what they might inadvertently have in their garden shed. If they have a legitimate use for the ingredient that becomes prescribed, even if the product has been withdrawn, it will still be legitimate for them to have it in their possession.

My hon. Friend the Member for Bridgend asked about publicity. The Secretary of State will have an obligation to publicise when making an order prescribing the pesticides to which the offence will apply. Clause 43(8) states:

“The Secretary of State must take such steps as are reasonably practicable to bring information about the effect of an order under subsection (1) to the attention of persons likely to be affected by the order.”

Those people who might have a pesticide for which there is no legitimate purpose will be given notice by the Secretary of State that they should dispose of it or they will be committing an offence. If amendment No. 63 were accepted, as long as someone claimed that they had a legitimate use for the substance once upon a time, they could claim the defence in perpetuity. The previous legitimate use would in practice be impossible to prove, and I argue that the amendment would render the offence unenforceable. Sufficient safeguards have been introduced to ensure that the innocent will not be open to vexatious prosecutions. The list of prescribed pesticides will be subject to the prior consultation that I set out, and the Secretary of State is required to draw the list of pesticides prescribed by order to the attention of those members of the public who are likely to be affected.

Photo of Peter Atkinson Peter Atkinson Whip, Whips 12:45, 28 Mehefin 2005

This is a technical point. Let us suppose that someone keeps in their garden shed a chemical that is prescribed but has a use on potato crops. The person then decides not to grow potatoes for two or three years. Would keeping the chemical there be a legitimate use on the basis that they might grow a further crop of potatoes in future?

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I would have thought that if the person can demonstrate that it is likely that they will cultivate potatoes and will require the pesticide, that will be a legitimate defence. The court will have to judge every circumstance on the basis of what we are saying and, as ever in law, we are talking about what is reasonable. If someone could reasonably show that they had a history of growing potatoes on their allotment and they were likely to grow potatoes in future, it would be reasonable and legitimate to keep that pesticide.

Amendment No. 64 would have the undesired effect of giving those who use a pesticide to cause harm to wild animals and birds an additional six months to replace it with an alternative product that does not contain an ingredient listed in the order. Perhaps that is not the intent of the hon. Member for South-East Cambridgeshire. There will be plenty of time for those who do not have the intentions described to dispose of products for which they do not have a legitimate use. A process would have to be gone through to add ingredients or products to the list by order in this House. There would be adequate consultation and adequate publicity would be attached to it, so I do not consider it necessary to allow an extra six months for people to find an alternative product. On that basis, I invite the hon. Gentleman to withdraw the amendment.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

We all share the same objective. As my hon. Friend the Member for Hexham pointed out, when we look at the list of incidents in 2003, we see that there is no justification for them. Most of the species that were poisoned in those incidents pose no threat to any form of shooting interest, be it on lowland, grouse   moor or anywhere else, so whoever was responsible for the poisoning had no vestige of an excuse—not that I am suggesting that anyone could.

I do think, however, that the Minister may not quite have taken on board the import of what is proposed. I am sorry that he did not address the fact that we are reversing the burden of proof in the legislation. The message is, “You will be guilty unless you can prove that you have a good reason for keeping the pesticide.” His response to the intervention by my hon. Friend the Member for Hexham about someone who says, “I used it to grow potatoes and might do so again,” seemed to be completely at odds with his earlier rebuttal of my amendment No. 63, when he said that he could not accept it because it would be an open-ended excuse for someone who said that they used to use it. The two do not sit together.

The Minister needs to examine his stance. It is perfectly reasonable for someone to say that they have a product in the shed. I have used the phrase “garden shed”, which has been picked up and used repeatedly by other hon. Members, but I am talking about any facility, whether it is the garden shed, farm building or even the dog kennel, which is where some people keep pesticides out of harm’s way because the dog stops anyone intruding.

I understand the Minister’s point that it is difficult to prove intent, but wherever pesticides are held, it is perfectly reasonable for people to say that they have kept them to grow potatoes in the garden, or to grow a crop if they are farmers, but that they do not use them any more, although they might do so again. His response to my hon. Friend the Member for Hexham suggested that he agreed with me, so his reason for rejecting my amendment No. 63 is odd.

As for amendment No. 144, I have already referred to the burden of proof. I accept that intent is difficult to prove, but I want to draw from the Minister what the clause is trying to achieve. That is why, with all due respect, his more generalised remarks about the clause suggest that he has not fully taken on the board the point that my hon. Friend the Member for Hexham and I were trying to make, which is that if people have malign intent and want to continue to set poison for birds, they will find a poison to do it with, even given the list in the schedule. I do not know what will be included in the schedule, but as I said, there are several poisons that it is reasonable for most people who live in the country to have. There are, for example, poisons for use against moles and rats.

We have not even embarked on products for humans. I do not know how many paracetamol tablets it would take to kill a bird of prey. Perhaps we should not speculate about that, but I am sure that a certain dose would kill it. I am concerned that people who want to find a way round the legislation will do so, and that we will have legislated to no overall gain.

I am sorry that the Minister chose to use a hypothetical gamekeeper as his example, because although he readily accepted that most gamekeepers are good, worthy and sound citizens, the mere fact that he used a gamekeeper as an example simply serves to underline the belief that gamekeepers are the problem.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I do not want to repeat myself, but although I know that not all gamekeepers use poison, I know that other gamekeepers do. I heard of a particularly horrific incident in the west country this weekend, which may well implicate people who raise pigeons. We all accept that there is a problem and that we must do something about it, but I do accept that gamekeepers are not the only ones who use poison.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am grateful for that. I, too, am aware of suspicions that people who raise pigeons are also involved.

I was astonished that the Minister read out that amendment No. 64 would simply provide people with another six months to find an alternative poison. That was a contemptuous response to an important point, which was the point made by the hon. Member for Bridgend about publicity; people must be given time to learn what is on the schedule and what is being banned, and to dispose of it. That is all that I am seeking. If six months is not right, I am happy to discuss what is, but simply to dismiss the amendment on the grounds that it is intended to buy time for people to find something else is outwith the spirit of the Committee’s debate so far, and I regret that very much. The purpose of the amendment is purely to provide the opportunity for people to learn what is happening.

There are many other issues in this section of the Bill that my hon. Friends and I wish to debate, so I shall not press the amendment to a vote, particularly as there are probably others of equal, if not more, importance. However, this has been an opportunity not just to discuss the amendment but to rehearse the purpose of the clause and my humble reservations and those of my hon. Friend the Member for Hexham as to whether the Government will achieve the objective that we all seek to achieve. In order to make progress, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs

I have listened to all that has been said. When my hon. Friends and I first read the clause, we had certain reservations, which have all been teased out in one way or another. First, the fact that the clause is headed, “Possession of pesticides harmful to wildlife”, when what we really want to prosecute is the use of pesticides to harm wildlife. I recognise the difficulty in obtaining evidence of use. People would have to be roaming all over the place and it would be difficult to gather evidence. Thus, we come down to the next best thing—possession.

The cause of all the problems is that sufficient evidence cannot be obtained to prosecute people for use, so the prosecution must be for possession. In many respects, the clause is a sledgehammer to crack a nut. It is draconian and has spread outwards and caused great difficulties in respect of legitimate possession of material, ingredients or substances that could be used to poison wildlife if such were the intention. We then come to the difficulties of proving   intent. First, use cannot be proven; therefore, it comes down to possession. Now intention must be proven, and that involves many difficulties.

The Minister referred to the whole idea of catch-up. I suspect that a constant succession of statutory instruments will be introduced to add other substances to the list. Presumably, every time one is added, there will be another six-month period. There will be six months for this one, and a different six months running into yet another six months. There will be a succession of six-month periods starting one month after the other.

There will be vexatious allegations. Already a considerable number of vexatious allegations are made about police going around looking at all sorts of things on farms and estates—not in potting sheds or garden sheds but on estates. I regret that people will make such allegations and that police time will be wasted.

My colleagues and I did not table amendments on the clause, which deals with a very difficult area. We recognise that the Government have tried to get as close as they possibly could to a solution, but we must register our real reservations about the clause. There will be difficulties in addressing the problem, and it could spread into other areas. The clause could create unintended consequences.

Question put and agreed to.

Clause 43 ordered to stand part of the Bill.