Infrastructure Bill [HL]

Baroness Kramer Excerpts

Thursday 10th July 2014 Grand Committee

[Lord Davies of Oldham (Lab)]

My Lords, I shall also speak to Amendment 73, with which Amendment 72 is grouped.

As I thought to construct a speech on this issue, I found myself in the most extraordinary philosophical and political position. All my political life, I have seen the lines of conflict over issues drawn in the following way. Going back to Finance Bills in the 1970s, for instance, I recall that the Labour Government were always accused of drawing up excessive invasive powers—in particular for tax authorities to appropriate property—and the Conservative side was always expressing the rights of the landowner and the liberal proposition that the state should be kept at bay. In fact, on one famous occasion, I remember a Conservative member of the committee telling me, “If this amendment to the Finance Bill is carried, there will be the knock on the citizen’s door and it will be the knock of the French revolutionary of 1789 saying, ‘Ouvrez, au nom de la République!’”, such were the terrors that were being visited upon the British in 1976. I had the temerity—I was a PPS at the time—to suggest that the historical analogy did not quite hold up, not least because the French Republic was not declared until 1793, and therefore he was four years premature in suggesting that the revolutionary was asking for entry in the name of “la République”—after all, Louis XVI did not meet his death until 1793.

However, with this issue here, the position is exactly reversed. The current Government are producing a power of entry that we regard as being quite exceptionable and needing some mighty justification. I do not know whether this proposal in the Bill has emerged from a Conservative Party that has gone soft on supporting landholding interests or from the malign influence of those in the Liberal wing of the coalition, who have decided that they should have regard to the landed interest. However, we are agin this proposal, and I shall go on to explain, as clearly as I can, why. It seems quite unnecessary to give an authorised person,

“to determine whether to offer to enter into a species agreement with a person”,

this excessive right to demand entry. Surely powers of entry must be handled delicately. As a liberal-minded socialist, I would say that powers of entry should always be handled delicately, because the citizen in a democratic state has rights. There needs to be a balance between the interests or rights of the property owner and the rights of environmental authorities wanting to eradicate invasive non-native species.

Of course, we are all with the Bill in its attempt to tackle what we all recognise is a very severe problem, but the authorised person would be seeking to obtain an agreement. It does not seem right, therefore, to allow a power of entry at an early stage in the process before the property owner might even be aware of the need to enter into a species agreement. The persons concerned have not got anywhere near the negotiation stage; as far as one can see, they have not even necessarily identified that there is a problem at all, but there could be this knock on the door from the authority.

In England and Wales, the entry on to private property by any person is a trespass, unless consent is given or the entry is otherwise authorised by statute or by common law. It is also the case, of course, that this concept is enshrined in Article 8 of the European Convention on Human Rights, which provides a right to respect for private home and family life. In this respect, Article 8 can only be interfered with if it is prescribed by law as a legitimate aim and is necessary in a democratic society. It is particularly difficult to describe species control agreements as a pressing social need for action. After all, if the concept anticipates an agreement as the achievement of the policy, what is the pressing need for forthright rights of entry? Moreover, the Home Office’s powers of entry gateway, which regulates powers of entry, sets out tests which must be satisfied, including “Necessity”, “Proportionality” and “Safeguards”. Such powers should be used only when necessary and not routinely, but these powers in the Bill are routine—they come in at first base, as it were, and condition the nature of action.

Will the Minister justify how allowing a power of entry on to someone’s land merely to decide whether to enter into an agreement fulfils the requirements set out in the European Convention on Human Rights? The property holder is going to be asked to enter into an agreement. Of course I recognise the problem that may arise if agreements cannot be achieved and if the threat to the wider society is significant—none of us is going to underestimate the damage which some invasive species can do. We all know that it would be absolutely pointless if one householder dealt with Japanese knotweed alone. The capacity of one householder to deal with Japanese knotweed alone beggars the mind, but if he did succeed in dealing with Japanese knotweed alone it seems absurd to suggest that agreement would not be necessary. Next door would have to be involved; otherwise, one would not have a solution and one would be more likely to have a situation in which the problem was extended.

It may be thought that I am being excessive in challenging the Government on these issues and recalling other occasions when these issues have been raised, when the boot has been on the other foot and I watched Labour Ministers wrestle with arguments from landowners and Conservatives. The crucial issue is that the Law Commission review addressed this issue and highlighted the fact that concerns were raised regarding potential overuse of powers of entry. It concluded that there should be a formal safeguard against potential overuse of powers of entry. Of course, we subscribe to the objectives of the Bill with regard to tackling the problems caused by invasive species, but we believe that we are entirely justified in probing the limits of the power of entry as regards when and how it will be used. I beg to move.

[The Minister of State, Department for Transport (Baroness Kramer) (LD)]

My Lords, I resist Amendment 72, as circumstances may arise in which Natural England has reason to believe that a non-native invasive species is present on someone’s land but the owner denies access to verify this. However, without that verification, one cannot proceed to issue a control order. If there is no voluntary agreement, the landowner can avoid the imposition of a control order. Typically, Natural England will approach the landowner and give him at least 48 hours to respond. The reason for having this tight benchmark is that sometimes one can determine whether a non-native invasive species is present even when one is off-site. However, that cannot always be done, as sometimes the species is tiny and is therefore difficult to pick up in, for example, an aerial photograph.

The expectation is that arrangements will be voluntary and collaborative with rare exceptions—for example, in emergencies. The Committee will know about Asian hornets. We have almost the equivalent of an alert system around the country, watching out for the arrival of Asian hornets. I am advised that, if they are found, eradication needs to take place very rapidly, possibly within 48 to 72 hours, or they will pose a threat to native bees, with all the consequences that flow from that. Therefore, on occasion, it is absolutely necessary to move fast. It would be problematic to provide a landowner with a mechanism to resist even entering discussions about a voluntary agreement and therefore to avoid triggering the process that would eventually lead to a control order. I fully recognise the issues that have been raised. However, given the purpose of this legislation and the implications of allowing a rapidly increasing invasive species to get out of control, I ask the Committee to recognise that this power is necessary and I ask the noble Lord to withdraw the amendment.

Amendment 73, which is also in this group, is slightly different. It would require an environmental authority to ensure that, whenever it exercised a power of entry, it must leave the premises as effectively secured as they were on entry rather than, as stated in the Bill, to do so when the premises are unoccupied or the owner is temporarily absent. We want very much to ensure that unoccupied premises or premises where the owner is absent are left effectively secured. As regards Amendment 73, we take the point that there might be grounds for a more general application of the provision. One of the things we are concerned about is the need to think through the language that is used, as we do not want to encourage people to “booby-trap” premises, as it were, with expensive systems that would then have to be replaced. Therefore, I am sympathetic to the intent of Amendment 73 but, given the importance of being able to control invasive species, we need to retain the powers in the Bill, which would be negated by Amendment 72.

[Lord Davies of Oldham]

My Lords, I am grateful to the Minister for her sensitive approach to Amendment 73. We will look again at the wording of that amendment to see whether we can persuade her to change her mind on that matter. It seems a pretty obvious thing to require that, if an authority moves in for the very good reasons that it would have in those circumstances, it should leave the place in the same order that it found it. Otherwise, it seems that we are giving extraordinary powers to those who carry out this action.

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[Baroness Parminter (LD)]

On these Benches, we have some sympathy with this amendment. When we are looking at how we take forward species control agreements, it is important that some principles are set up out front. While I would not go so far as the noble Lord, Lord Davies, and talk about animal rights, we on these Benches support animal welfare.

There are two reasons why this amendment has some merit. First, we need these species control orders to be effective and humane. That is where I have a slight difference of opinion with the noble Lord, Lord Davies of Oldham. We may have disagreements about the outcomes of the Government’s badger-culling pilots, but the Government went in on the basis that the pilots were to test whether a cull was effective, humane and safe. These species control orders should follow the same principles of being effective and humane.

My second point, which may find more favour with some in government, is that clearly whether species control orders go ahead and the cost attached to them will depend on how they are undertaken. It is a damn sight cheaper to free shoot than it is to trap and shoot. Whether a form of species control is humane will have an impact on the cost. Therefore, when we are setting up the principles behind these species control agreements, it is important that a marker is set down that they should be humane, because that will have an impact on the cost, which will be determined on a case-by-case basis for these species control agreements.

For those two reasons, this amendment has some merit. Equally, I think it has the merit that it does not stipulate the control method to be used for each of these species control agreements but talks about the principles for the code. That is what we should be doing. We should be setting down some fundamental principles in the code which can then be interpreted on a case-by-base basis for each of the species control agreements.

[Baroness Kramer]

My Lords, the noble Lord, Lord Davies of Oldham, is quite right that most people who find that there is a non-native invasive species on their land are glad to co-operate. Unfortunately, about 5% will not. We have experience of this, particularly in the south-east, where it has been extremely difficult to get access when there has been a suspicion about the presence of the North American bullfrog, which eats every amphibian it comes across, and there have been various problems caused by floating pennywort. Unfortunately, there is a history of non-co-operation with access as well as non-co-operation with eradication. We have to be realistic about the consequences of that.

We are attempting to capture beavers and test them because the great fear is that they are Bavarian and come with an extremely nasty disease that is common to Bavarian beavers. Frankly, I had not heard of it before this Bill, but it is a zoonotic disease that I am told one must avoid at all costs.

Amendments 74 and 78 would require the respective codes of practice to set out the standards of animal welfare required when carrying out species control agreements and orders. We agree that control operations need to be consistent with existing published government policy on the welfare of wild animals. Your Lordships may wish to know that the EU invasive alien species regulation that is expected to come into force on 1 January 2015 requires that,

“animals are spared any avoidable pain, distress or suffering”,

in the carrying out of eradication or management measures for those species subject to the regulation.

As the noble Baroness, Lady Parminter, underscored, we have a very useful code of practice that is going to play a very significant role in the use of these control orders. I give a commitment to take a look at that code of practice and see whether there is a sensible way in which to specify welfare obligations in that. If there is, we will come back with a response before Report, because it is our intent to make sure that animal welfare is appropriately protected. I hope that that is sufficient reassurance to allow the amendment to be withdrawn.

--- Later in debate ---

[Viscount Hanworth (Lab)]

My Lords, the comments that I wish to make may have some relevance to the codes of practice that will accompany the Bill. Amendment 71, in the name of the noble Lord, Lord Berkeley, which has already been debated, could have been a cue in its own right for a wide-ranging and interesting debate.

The noble Lord, Lord Berkeley, proposed the definition of a species. A species is commonly defined as the largest extent of a group of organisms that is capable of interbreeding and producing fertile offspring. That is similar to the definition that the noble Lord, Lord Berkeley, was advocating, which also mentioned the exchange of genes. However, his definition did not include the fertility of the offspring as one of its conditions. Moreover, we know that bacteria of widely differing species can exchange genes via plasmids, which are small DNA molecules that can be separated physically from the chromosomal DNA. One might wish to exclude bacteria from the definition.

These are abstruse matters and I do not wish to pursue them further. Instead, I propose that in place of “invasive non-native species”, the legislation should be talking simply of “pests”. I assert that it is inappropriate to talk only of non-native species. The objection might be raised that the word “pest” is too vague to serve the purposes of this legislation. What is a pest in one context might be a harmless organism in another context. However, this is one of the realities that ought to be taken into account. I will mention the well known example of the English rabbit. When transferred to Australia, it became a major pest that threatened the viability of Australian agriculture. Rabbits destroyed the grazing land and by eating native plants and grasses exposed the top-soil and left it vulnerable to erosion. One way of overcoming an infestation is to alter the ecology by introducing a predator of the pest, or by some other means. In Australia in the 1950s, the ecology of the rabbits was altered radically by the introduction of a malign myxoma virus, which causes myxomatosis in rabbits.

The point I wish to make is that we need to consider pests within their ecological contexts, and ecology can be severely disturbed by inadvertent human interventions. Often the effect of a human intervention is to diminish the diversity of the ecology by eliminating some of its organisms, which may allow others to propagate without restraint. Thus an organism that has hitherto been regarded as harmless may become a pest as a consequence of such disruption. This is an ever present hazard in intensive modern agriculture. The matter of whether an organism is native or non-native is beside the point.

An ancient example will serve as an illustration. It is provided by a variety of grasshopper that was originally confined to the Middle East, which has latterly invaded the entire African continent. This is the locust, of which the pestilential effects emerged when the advent of agriculture upset an ecological balance. The Book of Joel in the Old Testament provides a graphic description of a locust plague in the Middle East.

The point that I wish to make is that we should approach the problem of ecological imbalance not by programmes of localised pest control but in a holistic manner that takes a far wider ambit. Instead of relying on local pest control officers to deal with outbreaks of invasive species, we should be relying on our public sector research establishments to monitor our natural—and our unnatural—environments so as to guard against pestilential outbreaks and to suggest the necessary countermeasures. This reinforces a point that has already been made by my noble friend Lord Davies, and I hope that his comments might be taken into account at a later stage when we come to review the Government’s deliberations.

[Baroness Kramer]

My Lords, those of us who were privileged to participate in the Defra visit the other day—an opportunity that many of your Lordships took up—will have been very impressed to see the care and control and the deliberate and constant testing and assessment that Defra uses before enabling any biological controls to be used for some of these invasive species. Obviously, that is one direction that is under examination for Japanese knotweed, that much-hated plant, but it sits outside the scope of this legislation, which focuses very much on new invasive species that are not ordinarily resident and where there is a potential for eradication to succeed. The Bill has a narrower target, but other pieces of legislation sit alongside it that tackle, for example, invasive non-native species that are a threat to plant and animal health. So the Bill sits within a much broader context.

The amendments focus on the need for wider consultation on the code of practice. It has always been the Government’s intent to engage a great deal with expertise, with stakeholders and with others on the code of practice, which will be a substantial and complex document that will certainly need a great deal of thought and care. We continue to think about how we should carry out that engagement, and we would like to take a little more time to consider those issues, including the option of undertaking a full public consultation on the code. I can commit that I will have a response on the issue before Report, but I assure your Lordships that it is our intent to have that kind of intensive engagement, including with a number of parties that have been named today. We would like to take this away and think a little more on it, as the code of practice will be complex. However, it is indeed the Government’s wish to be able to tap into that expertise and thinking in order to make the code as effective as possible.

On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

[Lord Davies of Oldham]

My Lords, I am grateful to the Minister for her thoughtful and constructive response, and I certainly beg leave to withdraw the amendment.