§ (1) Subject to this section, if any person wilfully disturbs any wild bird included in Schedule 1 to the principal Act (wild birds protected by special penalties) while it is on or near a nest containing eggs or unflown young of any such bird he shall be guilty of an offence against that Act and liable to a special penalty under that Act.
§ (2) An order made with respect to any area under section 3(1) of the principal Act (establishment of bird sanctuaries) may provide, subject to this section, that any person who, within that area, wilfully disturbs any wild bird while it is on or near a nest containing eggs or unflown young shall be guilty of an offence against that Act; and paragraph (d) of the said section 3(1) (which enables the order to direct that a person committing an offence within the area to which the order relates shall be liable to a special penalty) shall have effect accordingly.
§ (3) A person shall not be guilty of an offence by virtue of subsection (1) of this section or of any order made by virtue of subsection (2) of this section—
- (a) by reason of anything done by him for the purpose of examining the nest of any wild bird for scientific or conservation purposes if he is an officer of, or a person
918 for the time being approved for that purpose by, the Natural Environment Research Council; or
- (b) by reason of anything done by him for the purpose of photographing any wild bird or its eggs if he is a person for the time being approved for that purpose by that Council.
§ (4) An authorised person shall not by virtue of any such order be guilty of an offence by reason of disturbing any wild bird included in Schedule 2 to the principal Act.
§ (5) In section 4 of the principal Act (general exceptions to liability under section 1 or an order under section 3 of that Act) references to the said section 1 shall include references to subsection (1) above, and references to such an order shall include references to such an order made by virtue of subsection (2) above.
§ (6) A licence under section 10 of the principal Act to take or kill any wild birds or to take the nests or eggs of any wild birds shall be taken as authorising any act reasonably incidental to that taking or killing which would otherwise constitute an offence against that Act by virtue of this section.
§ —[Mr. Kimball.]
§ Brought up, and read the First time.
§ 11.6 a.m.
§ Mr. Marcus Kimball (Gainsborough)
I beg to move, That the Clause be read a Second time.
The new Clause is almost the same as the Clause 3 that was struck out of the Bill on a Division in Standing Committee, but it contains—this is what is important about it—an entirely new subsection (3), which makes it perfectly clear that no offence is committed in the circumstances outlined in paragraphs (a) and (b) of the subsection. I submit that this change meets the principal objections voiced in Standing Committee to retaining the original Clause 3.
When my hon. and gallant Friend the Member for Lewes (Sir T. Beamish) moved the deletion of Clause 3, he said that he did so with a heavy heart and that it was a good Clause and a Clause that he wished to retain in the Bill. In his remarks about the Clause, he paid a very special tribute to his predecessor as President of the Royal Society for the Protection of Birds, Lord Hurcomb, and made it clear that in another place Lord Hurcomb had said how important the Clause was and how much he wished the Clause to be retained in the Bill.
A Bill containing this Clause less subsection (3,a and b) was passed twice in another place and once in this House on 919 the nod before the last General Election. Hon. Members opposite voted in Standing Committee, as did my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), for the retention of the Clause. So I hope that hon. Gentlemen opposite will support the restoration to the Bill of the Clause in its amended form.
The important thing about the alteration is the word "wilful". It is the key to the Clause. I am advised by many hon. and learned Friends that "wilful" means deliberate and intentional and not accidental. The principal objection raised to the Clause in Standing Committee was that someone could be prosecuted for accidentally disturbing a bird's nest. The Clause as now drafted makes clear that the disturbance has to be wilful and intentional.
The House may wonder why we attach so much importance to the Clause. I will give a practical example. Not long ago the red-necked phalarope decided once again to nest on the mainland of Scotland close to where I live. This particularly beautiful little wader is rather unique as birds go because the hen is much more beautiful than the cock. Not only that but the hen, once she has laid her eggs, gets fed up with the whole business and does not hatch them. The result is that the cock phalarope has to hatch the eggs. No doubt he feels somewhat abashed at having to take on this female task, so once he gets on the eggs in the nest he draws all the surrounding grass around himself so that it is practically impossible to see the nest.
However, once keen ornithologists and not so learned ornithologists found that the red-necked phalarope was nesting in central Sutherland, they came from far and wide, and although they were told that it was nearly impossible to find the nest because of the protective action taken by the cock bird sitting on the nest, they proceeded to go backwards and forwards line upon line until they disturbed the nest, and in this case the cock bird is unlikely to return to the nest.
It is in such circumstances that we need this Clause whereby we can tell such people, "However keen you may be, if you disturb that area the bird will 920 desert." The Royal Society for the Protection of Birds needs these powers in order to meet practical cases like the one I have just given.
It is perhaps interesting to know that one of the reasons why the red-necked phalarope is so rare in this country is that in the old days, when there was a lot of cattle on the mainland, the cattle used to eat down the long grass around the marshes, so that the birds had no nesting habitat. Therefore, when we have a limited number of habitats it is important to protect them from negligent and wilful intrusion. In view of this argument and the practical example I have given, I hope that the House will agree to the new Clause.
§ Colonel Sir Tufton Beamish (Lewes)
I have listened with close attention to my hon. Friend the Member for Gains-borough (Mr. Kimball), who made a fascinating speech. He made a carefully reasoned argument in support of the reinstatement of the Clause, in amended form, which, during the Committee stage, was deleted. I myself moved the deletion of the former Clause in Committee on two main grounds. I was the principal objector to it.
First, after taking some legal advice, I believed that the words would give rise to difficulties of interpretation and that the chance of bringing a successful prosecution was slight. I felt that to decide what was "near" and what was "wilful", or to prove that a bird deserted its nest because it was wilfully disturbed, would be complex and uncertain.
Secondly, I agreed with the bird photographers who represented to me strongly the risk they would face under that Clause if, as is sometimes inevitable, they disturbed a rare bird, however much care they took. I had strong representations from the photographic societies on this point.
§ Mr. Nicholas Ridley (Cirencester and Tewkesbury)
Would not my hon. and gallant Friend agree that it would be better if bird photographers were to photograph rare species in places where they are common? For example, the phalarope is common in Iceland and many hawks are common on the Continent.
§ 11.15 a.m.
§ Sir T. Beamish
I agree but it would be difficult to legislate for that.
At the same time, during the Committee stage, I was afraid that any further extension of a licensing system might prove cumbersome and administratively difficult. These are the factors that I weighed against the one strong argument in favour of the Clause as then drafted and which I clearly stated—that it had a psychological value which I believe to be strong. There is much to be said for demonstrating in legislation that it is wrong and foolish to disturb rare birds when nesting. This Clause does that, but in Committee, with regret, I decided that its disadvantages outweighed that one clear advantage.
I still have doubts on the question of enforcement, and if the House accepts the Clause in its amended form, as I suggest that it should, I hope it may be regarded in this form as being in the nature of an experiment and that careful note will be taken of the way it works in practice. This would provide a basis for a review of the law in future if that proves necessary.
I am glad to say that not only am I satisfied that the interests of photographers are adequately protected in the reworded Clause; but that I have had assurances from leading bird photographers that this is also their view. I have had a letter from the Royal Photographic Society, a very representative body, saying that the Clause as redrafted is acceptable to it.
I think that the individual example my hon. Friend gave about the red necked phalarope—which I have never seen near his home in Sutherland, but which I have seen in the Outer Hebrides—was a good way to demonstrate the need for the Clause. He added to my comparatively small ornithological knowledge when he said that the cock sits on the eggs, just as the ostrich does. I do not know whether he knew that about the ostrich. But there are no ostriches in Scotland yet.
On the question of the licensing system, I am assured by Nature Conservancy, which will administer the procedure of approving persons for the purpose of the Clause, that an orderly and simple 922 routine is likely to be worked out, as it has been for licences issued since 1954, when the principal Act was passed. Consultation is still going on with the voluntary bodies concerned to evolve a workable scheme, and a photographic advisory committee of Nature Conservancy will make recommendations for administration as it concerns photographers. If any hon. Member wants further details about the lines on which Nature Conservancy is working, I have them here.
I still have reservations about making certain voluntary societies, such as the Royal Society for the Protection of Birds and the British Trust for Ornithology, subject to the authority of a Government Department in carrying out their expert and valuable work. I do not think, however, that this is an overriding disadvantage on balance and, with the reservations I have mentioned, I am in favour of reinstatement of the Clause as amended.
I know that it has been scrutinised by a number of legal experts in this House and in another place and approved by them. I know that Lord Hurcomb, who introduced the Bill in another place, is very keen to see the Clause reinstated in its amended form. I would not, therefore, wish to press my layman's doubts about the feasibility of enforcement any further. I hope that the House will approve this Clause.
§ Mr. Gordon Campbell (Moray and Nairn)
I am glad that my hon. and learned Friend the Member for Lewes (Sir T. Beamish) now feels that he can accept the new Clause, which is an amended version of the old one, deleted in Committee. I was one of those who, on balance, were against the earlier Clause and I realise that there may still be difficulties in enforcement.
My hon. Friend the Member for Gainsborough (Mr. Kimball) gave an excellent example in telling about the red necked phalarope in Sutherland. The red-necked phalarope is a shy bird which easily deserts if disturbed and, on hearing about the somewhat human characteristic which my hon. Friend ascribed to it, I would compare it with perhaps a man who has been discovered by his male pub-crawling friends as 923 having been left at home with the duty of baby sitting in the evening.
I have one question which I want to put to the Minister of State for Scotland. He and I have been much concerned lately with the Countryside (Scotland) Bill. I wonder whether there are any difficulties which may arise from this new Clause in relation to the fact that, in Scotland, we are hoping to open up much more of the countryside to visitors and people from the towns so that they may enjoy the amenities and natural beauties of Scotland. I hope that the word "wilful" and other words in the Clause will make sure that, on the one hand, people who unwittingly disturb birds will not be proceeded against and, on the other hand, that the Scottish Office is satisfied that action—not necessarily by the Scottish Office—would be taken, where there were protected birds of special significance nesting, to ensure that persons who were within their rights in the area were warned and knew about the situation and could not therefore disturb the birds unknowingly. I would be glad to hear, because of the changes which we hope will take place in the coming years in Scotland, that the Scottish Office is satisfied on this aspect.
Mr. Richard Sharpies (Sutton and Cheam)
I am glad that the sponsors of the Bill have agreed that this amended version of the Clause is acceptable. As my hon. Friend the Member for Gains-borough (Mr. Kimball) said, the operative word is "wilfully". I think that this insertion should remove any doubt among those who feel that they might be liable to prosecution for having inadvertently disturbed a wild bird on its nest.
The debate has ranged over a wide field, from birds in Scotland to ostriches elsewhere, but it would be useful to hear whether the Government agree that the new Clause meets the legal objections which were raised to it in its previous form. It would be very useful to hear that from the Under-Secretary before we pass the Clause.
§ The Under-Secretary of State for the Home Department (Mr. David Ennals)
The Government have not taken any position on this, as the right hon. Gentleman knows, but I think he should be informed that the Advisory Committee 924 for the Protection of Birds for England and Wales has reaffirmed its support for the general principle, and the Nature Conservancy, whose views we take very seriously, has indicated that it is satisfied with the new version. Therefore, we are not raising any objection to the proposal in its present form.
§ Question put, and agreed to.
§ Clause read a Second time and added to the Bill.