§ Order of the Day for the Second Reading read.
§ VISCOUNT GREY OF FALLODONMy Lords, I ought to explain to your Lordships first of all why a Bill of this kind has been considered necessary. It is not because there is at the present moment no legislation for the protection of wild birds, but rather because there is almost too much legislation. Several Acts for the protection of wild birds are now in force and there are enormous lists of protected birds which very often do not coincide as between one county and another. The result is that, though there is plenty of law, the law is not enforced as it should be enforced. In fact, to all people who are interested in the preservation of wild birds, it has for a long time been a matter of increasing distress that the legislation which at present exists is to so large an extent a dead letter, that the law is so constantly broken with immunity or, when it has been broken, that the penalties are so slight that they are really no deterrent to future breaches of the law. I may sum up the present state of things by saying that the law as it stands is so confused and there is such want of uniformity that neither the authorities whose business it is to enforce the law nor the public whose business it is to obey the law, have really any clear idea of what the law is. The result is that there does not exist behind the present law that force of public opinion which is necessary to encourage the authorities, who have it in their power to do so, to enforce the law, or to predispose 853 the public to comply with the law. That is the reason why fresh legislation is considered necessary.
Such has been the state of affairs for a long time past, but some years ago a Departmental Committee was appointed antler the chairmanship of Mr. Edwin Montagu, a man who has great knowledge of and great interest in wild birds, a Committee was which there sat some of the most distinguished practical ornithologists in England and Scotland. They issued a Report recommending the remodelling of the laws for the protection of wild birds. That Report recommended amongst other things that in connection with the Home Office in England and with the Scottish Office in Scotland there should be appointed advisory committees of persons who had an interest in or special knowledge of wild birds, and that these advisory committees should advise the Secretary of State for the Home Department and the Secretary for Scotland with regard to matters affecting the protection of wild birds.
The Home Office, at the time when Mr. Shortt was Home Secretary, appointed an advisory committee, and there also exists an advisory committee appointed in accordance with that recommendation under the Scottish Office. When the advisory committee was formed at the Home Office Mr. Shortt asked me to take the chair of the Committee and, not foreseeing at that time that I should be drawn into more public work than I anticipated, I agreed to do so. I have found it a very interesting occupation. The committee is composed among others of one of the heads the bird department of the Natural History Museum, a distinguished representative of the British Ornithologists' Union, a distinguished representative of the Royal Society for the Protection of Birds and a representative of the Ministry of Agriculture. This committee has sat at the Home Office. The Scottish advisory committee has also had many sittings, and sometimes the two committees have had joint sittings in order to discuss their recommendations to the Government as to the legislation which would be suitable to meet the needs of the situation.
The Bill of which I am moving the Second Reading to-day is the outcome of 854 the labours of those two committees. These committees were, of course, entirely unofficial in the sense that they were composed of outside persons having no connection with the Departments but being appointed solely with reference to their interest in wild birds and, of course, without any pay or official status. This Bill, which is founded on their recommendations, has been drafted in the Home Office, and it is in that sense really a Departmental Bill. As having been chairman of the advisory committee, I have been asked to undertake to promote the passage of the Bill through your Lordships' House. I should add that the Bill is not in absolute conformity with the recommendations of the advisory committees, but it is generally so.
I think the main point of difference is that the advisory committees would have liked a provision in the Bill that they should be made statutory committees in this sense, not that they should have special official status or salaries or anything of that kind, but that the Home Secretary in England and the Secretary for Scotland in Scotland should be under statutory obligation to consult the committees. The Home Secretary felt, for reasons which will be obvious, that there was some difficulty in introducing an innovation of that kind and the Bill therefore, while mentioning the committees, does not impose upon the Home Secretary or the Secretary for Scotland any obligation to consult them. It is, of course, assumed that as the committees will be kept in existence the Home Secretary in this country or the Secretary for Scotland in Scotland, except in a case of unforeseen emergency, will, on a matter affecting wild birds, consult the committees, who can meet for that purpose. With that exception I think the Bill really may be said to be founded on the recommendations of the two advisory committees and the recommendations of the two advisory committees are founded in the main upon the Report of the Departmental Committee called the Montagu Committee. That is the reason why new legislation is necessary and how this particular Bill came into being.
Now I would explain as briefly as I can the provisions of the Bill. There may be people who think that the Bill does not go far enough. I would ask those people to bear in mind that what we have been aiming at, above everything, 855 is to get legislation into a shape so uniform and simple, so well understood and so well within the limits of what is really desirable to protect rare birds in this country, that it will have behind it public opinion which will secure its enforcement. If you make it too far-reaching and complicated you defeat its object by simply securing legislation which is admirable on paper but which is not really effective or enforced. For that reason we have made the category of protected birds in this Bill as short as possible. One of the drawbacks of existing legislation is that there are enormous lists of protected birds which nobody reads through and which leave very little impression, except one of despair of being able to follow, upon the minds of those not specially interested in birds. We have, therefore, made the category of protected birds limited to those birds of which there is really some chance that they should establish themselves in this country, which are rare birds and which are in danger of extinction from being much sought after by egg collectors or people who make it their hobby in life to shoot rare birds in order that they may have them stuffed and put in their own private collections.
Category 1, therefore, though it is impossible to make any category absolutely logical, is limited to birds which might establish themselves in this country, which would be in danger of extinction if they were not protected, and whose maintenance as rare species in this country adds greatly to the interest of people who care for the wild life of birds and to the richness of the wild avifauna of Great Britain. We have omitted from it birds which are never likely to breed in this country but which appear on migration in autumn and winter and are frequently shot. I am speaking of birds of which there is no chance of their ever establishing themselves in this country—rare specimens which come to this country rather as wanderers, of which it cannot be said that either the number of species of birds which may really be called British is impoverished, or that the stock of birds in the world at large is diminished, by reason of the fact that when a rare specimen or two comes here in the autumn or winter it is shot, as being a rare bird. I think it is regrettable that it should be shot, but if you extend the category to cover those birds 856 you get again into long lists, and you do not get the protection you want for the birds which you really wish to protect. So far as it goes all the birds in Category I will be so protected under this Bill that it will be an offence against the law to kill any of them at any time of the year, or to interfere with their nests or eggs.
Category 2 consists of birds which breed in this country, which on the whole are not very common as breeding species, but which are very common in the autumn and winter, because they are reinforced by largo numbers from abroad. The simplest instance of the principle which obtains with regard to Category 2 is that of the wild goose. In the autumn and winter in this country there are numbers of wild geese of various kinds, and the shooting of wild geese is a form of sport as legitimate at least as any other form of sport; but there is only one species which breeds in this country at present, and that not in great numbers. Now, it would be impossible to say that it is an offence against the law to shoot wild geese in the autumn or winter, and therefore you cannot give them the protection of Category 1, but it is very desirable that any wild goose which showed a disposition to breed in this country should be protected in the breeding season, and therefore to add that possibly interesting breeding species to the birds which do breed in this country. Therefore, those birds which are put in Category 2 are birds as to which you cannot say that it is really an offence to take or shoot them in the open season, in the autumn or winter, because they are then present in very large numbers, but which it is very desirable to protect as breeding species in the close season, when, under the Bill, they will receive the same protection for their nests and eggs as the birds in Category 1.
Then comes Category 3, under which all birds are protected in the close season, from March 1 to August 31, except against, the owner and occupier. There is to be no list of those birds. It is possible to draw up a very long list of birds which should be protected, and which do no harm, and nothing but good, but if you get your long list it will receive very little attention. On the other hand, it would be possible to say that all birds are protected in the close season, and to have a black list of excepted birds. If you have a black list of excepted birds 857 the difficulty is that it leads to abuse, because by giving general permission to destroy the birds excepted from the protected list, there is the likelihood that while out to destroy the excepted birds the hunter may not confine his efforts to the destruction of the black-listed species. Then it is impossible to draw up a satisfactory black list. For instance, no one-would wish to put the bullfinch, one of our most beautiful and attractive birds, on the black list, but if the bullfinches multiply in a particular locality they may do very great injury to particular gardens. Therefore it has been thought best to say that all birds are protected in the close season, except against the owner and occupier, and to leave it to the owner or occupier to protect his fruit or his crops against any particular bird which is doing damage.
We had considerable difficulty when we came to the question of protecting the eggs of birds not in Category 1 or 2. We thought that, on the whole, if we wished the Jaw to he really enforced, it would be better that we should not attempt to draw up a list of protected eggs outside Categories 1 and 2. The birds left for Category 2 will all be birds which are in no danger of extinction, and which are not at present in danger from depredations of egg collectors; and, if you give protection to the eggs of the common birds, you then, of course, make it an offence for the boy or girl, on the way to or from school, or on a half-holiday in the country, or whenever they have spare time in the country, to take a single egg of a blackbird or a thrush. If you draw any legislation under which the police constable of a country parish has laid upon him the duty of prosecuting a boy or a girl who takes the egg of some quite common bird out of the nest we may feel quite sure, I think, that it is a duty which will not be readily performed and will probably not be performed at all. The effect will be simply to disparage public opinion with regard to the Bill, by making it less likely that the local authorities will fulfil the duties which are laid upon them by the Bill, and which it is really important and necessary should be fulfilled if rare birds are to be protected.
I would sum up the Bill by saying that what we have endeavoured to do is to give protection to rare birds. We have 858 left the protection of the common birds, and their nests and eggs, to the owner and occupier, and the general law of trespass, and power is given under the Bill to the Home Secretary or the Secretary of State for Scotland so that, should it appear that any bird is suffering from the taking of its eggs or from the destruction of its species—any bird which is an innocuous bird or, indeed, any bird which is, in his opinion, innocuous—it can be given the protection afforded by Categories 1 or 2. That is what we have done to try to simplify the Bill. Then we have gone a little further in order to make it possible to enforce the Bill easily. At present, I am told, you can find in some parts of the country, places where, on the list of birds protected in the county, a bird like the barn owl appears, and you may find in the local bird staffer's shop stuffed specimens of that very bird exhibited for sale quite openly, specimens which notoriously have been killed in violation of the law, though it is most difficult to prove it.
In this Bill there is a most valuable provision from the point of view of enforcing the, law, namely, that with regard to birds in Category 1, or their nest or eggs, and with regard to birds in Category 2 in the close season, or their nest or eggs, if anyone is found exposing for sale birds of those species, the protected of proof that the specimen of the protected bird was legally acquired lies upon the person who exposes it for sale. That is an important provision, and I think that really it should go a long way to stop some of the breaking of the law which is now going on. Every bird stuffer will he obliged to keep a register of birds in Categories 1 and 2, which will enable the origin of the specimen which he has in his possession to be traced. With regard to birds which are not exposed for sale, but which are found in the possession of anyone, the wording it not quite so strict. If it appears to the satisfaction of the Court that there is reason to suppose that the bird was not legally acquired, or its nest or eggs were not legally acquired, the Court has the power to throw the onus of proof (that is what it amounts to) upon the possessor of the specimen, or the nest or eggs, of such bird. That is really most important from the point of view of enforcing the law.
859 The penalties go further than under previous legislation. The penalty for a first offence is a sum not exceeding £5; for the second offence it is a larger penalty, and it may even be a month's imprisonment. The Departmental Committee recommended penalties of that kind. I must say I should have very much liked to see a penalty in the Bill which would be more effective than a month's imprisonment. The greatest enemy, I believe, of the rare species breeding in this country is the egg collector. The collection of eggs of rare British species becomes, with certain people, almost a mania. It leads to a considerable trade. These people are willing to pay enormous prices for a British-collected egg. In the case of birds that breed commonly on the Continent, for instance, the bird collector does not care about getting one of their eggs; he wants it to be an egg of a bird which very rarely breeds in this country and which has been found breeding in this country, and then he wants not only an egg, but the whole clutch of eggs.
And the ideal of the egg collector who carries things to extremes, so far as I can make out, would be to find that a bird which had never bred in this country at all before, was for the first time nesting. He would then be prepared, if he could not get the nest himself, to give any price to get the nest, and his hope would be that the bird would never breed in this country again, so that nobody else would have a clutch of those eggs. That is the sort of thing which is doing more than anything else—far more than the shooting of rare specimens—at the present time to endanger some of our most interesting and rare birds to the point of extinction as British breeding species. That person really is one whom I should like to see subject to such penalties as would really be deterrent.
The Bill says that for a second offence he may receive one month's imprisonment, and that is the form in which I am going to ask your Lordships to pass this provision. What I should have liked would have been that in such a case, where a man was found taking the nest of a rare British bird, in contravention of this measure, the whole of his private collection of eggs should be confiscated and handed over to a museum. That really would be the most deterrent 860 penalty. I am told that there are great legal objections to that, and that you ought not to go beyond the confiscation of the particular egg, or clutch of eggs, or specimen, which is the subject of the offence. I mention that suggestion as the thing which, I believe, would be more-deterrent than anything else, and which, unless there were absolute legal objections to it, I should be very glad to see put into the Bill. However, all I am doing is to bring forward the Bill as approved by the Home Office and by the advisory committees, and I do not ask your Lordships, as far as I am concerned, to do more than pass the Bill in its existing form. I should like to move one or two Amendments in Committee, which have occurred to me, but they will be entirely within the agreed scope of the Bill—the scope as agreed between the Home Office and the advisory committees.
One more thing the Bill does. It enables the Home Secretary or the Secretary for Scotland to establish sanctuaries for birds in any particular area. He can do that at the present time, but he can only do it by saying that every bird in a particular area shall be protected. He is not able to make exceptions. There are some most interesting sanctuaries. There are, for instance, the Fame Islands off the coast of Northumberland, where several species of birds breed which are interesting or rare as regards British breeding species. It is most desirable that those islands should be made a sanctuary. But on those islands there also breed, in numbers far too great, the lesser black backed gulls, which are by no means the most innocuous of birds and which breed in such great numbers on those, islands that unless they are kept in check they will destroy and perhaps exterminate some of the rarer kinds of birds which breed there.
The Home Secretary cannot declare the Fame Islands a sanctuary and except any bird from the provisions, or allow any bird in the sanctuary to be taken or destroyed at all. Under this Bill he would be able to declare the islands a sanctuary and to say that the lesser black-backed gull and the cormorants and birds of that kind need not have the protection of the sanctuary. The rarer birds would have all the protection of the sanctuary. The less desirable birds, which are there in too great numbers, should he dealt with 861 in order to keep their numbers under control. That gives elasticity to the powers of the Home Secretary and enables him to give practical effect to his power of making bird sanctuaries in a way which he cannot do under the existing law.
Those are the provisions of the Bill, roughly, and I would ask your Lordships to give it a Second Reading because I believe that there is a very large general public opinion in favour of the protection of our birds. I am sure that to maintain the number of interesting species which make a home in these Islands adds vastly to the interest of a considerable number of people who are specially interested in birds. It really adds to the amenities, and, I would like to say, to the general reputation of our country, that we should have as large a variety of avifauna in this country and of beautiful species of birds as the climate and conditions of the Islands would naturally produce. The object of the Bill is to make the law so simple that it shall be easily understood and so well within the limits of what everybody, at any rate, every reasonable person, really desires to see carried out that it will have behind it a public opinion which will encourage the authorities to enforce the law and will add to the powers of those authorities whose duty it is to enforce the law of making the law effective. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Viscount Grey of Fallodon.)
THE EARL OF CRAWFORDMy Lords, I shall not detain the House for more than a few moments. I cordially approve of the principal outlines of this Bill. I am glad to say that when I was First Commissioner of Works I was enabled to do much towards the establishment of bird sanctuaries in different parts of this country. I believe that public opinion is moving with remarkable speed in favour of the movement for the protection of birds. My fear about this Bill is that so far from its not going far enough, as some of your Lordships may think, it is in danger of going too far and, as such, of defeating its own object. But I should be greatly afraid of giving any check to the wholesome, and salutary movement of public opinion which I now see in all parts of the 862 country. Broadly speaking, subject to an exception or two, this Bill lays down that no bird may be killed in Britain between February 28 and September 1, except birds in farmyards and except, subject to existing Game Laws, partridges, grouse, pheasants and black game.
§ VISCOUNT GREY OF FALLODONI beg the noble Earl's pardon. The Bill only protects those birds which are not in Categories 1 and 2 against the public; it does not protect them against an owner or occupier.
THE EARL OF CRAWFORDI said, subject to certain exceptions, and I am going to deal with one of those exceptions which seems to me to raise an extremely controversial issue. I will not deal with it now; I will come back to it. It is a question, no doubt, of the interpretation of the Bill, and noble Lords who are learned in the law will, I dare say, look at this matter. I think the Bill is extremely difficult to understand. A number of these nine Acts which are about to be repealed are also certainly very much confused. Certainly, in reading this Bill through—and I have read it through several times—I found the greatest difficulty in understanding what actually is intended to occur under the Bill.
The idea of dividing the birds into categories covering the country as a whole is, of course, in accordance with the recommendation of the committees, and is, I am sure, a very suitable scheme. The noble Viscount, Lord Grey, says that, the categories have been made as small as possible. That is not quite so because every bird, with exceptions that you can count on the fingers of your hands, are included in one category or another in this Bill—every bird in Britain; so it has not been possible to make the categories really short. The first Category protects all the birds included in the Schedule against everybody throughout the whole year as regards the bird, the nest, and the eggs. Category 2 protects the bird, the nest, and the eggs during the close season, against everybody, again. Category 3 protects not the nests or the eggs against the owner or occupier, but I think it protects the birds against 863 the owner or occupier or anybody else during the close season. That is how I read the Bill.
There is no category for noxious birds, and I wonder if that is wise. There are certain noxious birds, and among those noxious birds are some of the most beautiful birds in this country; but I doubt whether it is to the interest of avifauna as a whole that those noxious birds should be preserved. The Germans, who know a great deal about this subject, have a regular schedule of noxious birds, and instead of putting those birds into Categories 1, 2 or 3, where they appear in this Bill, they are scheduled in what is practically a, black list by themselves; at any rate, in a list where they do not receive the protection which their charm, their beauty, and often their rarity would entitle them to receive. Now the noxious birds vary according to districts, according to cropping, according to the sylvicultural food supply, and according to a variety of circumstances which I need not go into, and the difficulty of making this list was originally that a raven, for instance, or a siskin, is in a particular category. In every parish in England, Scotland and Wales these difficulties may be produced in spite of the power to contract out, which is invested in the Home Secretary.
This Bill does protect noxious birds. It protects birds which many people regard as a danger and a nuisance in this country. It affords a measure of protection for the little owl. It also affords protection for another type of bird—the peregrine, falcon—in reference to which I read a case in this morning's newspaper. This is unquestionably one of the most voracious and in some ways one of the most dangerous birds. The case to which I refer was in North Wales where, yesterday, a boy was prosecuted for having in his possession a young peregrine falcon. I am quoting from the Manchester Guardian of this, morning. There is no question that the peregrine falcon is scheduled, and that possession of this bird was illegal, and the boy was very properly convicted. But what was the defence put forward? Mr. B. H. Brown, who is chairman of the local homing pigeon society, and who has lived in Llandudno for fifty years, stated that last spring he saw these peregrine falcons strike four pigeons, so he went to the 864 rocks where he knew their nest was, searched the rocks, and produced 1,800 pigeons' legs, of which 659 had identifying rings upon them. I do not know how long they had been accumulating, but I do NOT think that in an exposed place like that a pigeon's leg with a metal ring round it is likely to exist for more than two, or shall we say three years, if so long. Mr. Brown said, in effect: "Well, it may be against the interests of studying our native birds that this young falcon should be taken, but here actually below the lair I find 1,800 pigeons' legs—we will say 900 pigeons, it might be many more—and not less than 659 of these were carrier or domesticated pigeons carrying the identification marks of their owner."
I quote that because if we lay it down that all birds, however noxious, are to be protected against other interests—except by a long and tiresome rigmarole with which I shall deal in a moment.—we shall raise a prejudice against the protection of birds just at the moment when great progress is being made throughout this country. When I was First Commissioner of Works starting bird sanctuaries in all the Boyal parks in London and elsewhere, I got into communication with municipal authorities who own parks all over the country, and I found in great towns that for very little parks without any of the water and other things that we possess—parks much more congested than ours—movements had sprung up to start bird sanctuaries. What will be the effect in Lancashire, for instance, which is a great pigeon fancying and pigeon flying county, if we lay down absolute rules for the protection of the greatest enemy the pigeon has? I therefore urge your Lordships in this matter not to go in advance of public opinion, but to guide, canalise and encourage public opinion rather than hold the bludgeon at the malefactor.
I should like to see a provisional black list. The pigeon is often a really dangerous bird, and the sparrow is often a terrible and a dangerous nuisance. I should like to see a black list out of which you might contract rather than a protection list containing noxious birds which it becomes very difficult for one to destroy. As to sanctuaries, I think the provision is good, but the success of sanctuaries in this country is not going to depend upon anything the Government do, and is not going to depend upon any Act of Parliament 865 stating what birds may or what birds may not be shot, so much as upon the care with which the owner looks after the fencing and the destruction of vermin within the sanctuary.
I should like to come to the question that the noble Viscount raised just now. As I read Category 3 all birds, other than rare birds in Categories 1 and 2, are protected as regards the birds themselves against anybody except the owner or the occupier. The owner or the occupier is defined as the agent or servant also of the owner or occupier, but anybody other than a servant—a guest, for instance has to get permission from the owner or occupier.
§ LORD BUCKMASTERWhat Clause is that?
THE EARL OF CRAWFORDClause 6 (1). If anybody is aggrieved by what birds are doing, and requires to kill birds, or to take their eggs from the nest, notwithstanding the provisions of this Bill, in order to protect his property or his crops or his fisheries, he has to go to the Home Office to get permission to do so. Is not that really very ridiculous? And when he goes to the Homo Office, what is the procedure through which he has to go? In the first place, he has to enter into a bond with or without sureties for the payment of a sum not exceeding £50 in ease any permission attached to the licence is infringed. For the licence itself he has to pay £1, and the local authority has to receive copies of this licence, and the county council or the town council, as the case may be, has to have the licence ready for public display. Will that be done? If a man sees sparrows messing about an over-ripe oar crop, or bullfinches——
§ VISCOUNT GREY OF FALLODONThe licence is only to apply to Categories 1 and 2. He can deal with sparrows or wood pigeons without a licence, or delegate any other person to do so.
THE EARL OF CRAWFORDDoes the Bill say so? Section 6 (1) states:
The Secretary of State shall, subject to the provisions of this Act, have power to Errant a licence to kill or take birds or to take the eggs or nests of birds notwithstanding any of the provisions of this Act, to any person for any scientific purpose or 866 for the purpose of the protection of property, crops or fisheries, or for any other special purpose approved by the Secretary State.That applies to Categories 2 and 3. If it is a bird in Category 1—the rarest of all birds—where the protection of property or crops is required, or if it, is the case of the peregrine falcon, for instance, is it not extremely unlikely that the owner of the crops will go to Whitehall and have his sureties or deposit £50 and pay £l for the licence and go through all the slow and tedious rigmarole? The vest of the clause seems to me to rest just on what we want to avoid.What I want to do is to make friends with the taxidermist. Got hold of the local expert and persuade him to protect bird life; do not make an enemy of him. Do not treat him as if he were a culprit or criminal; bring him into this great movement, he is far from being averse from it. We must persuade these men that they have to take their share in the work of bird protect on. One subsection starts by saying, "Where any person sells" eggs—that does not apply only to the professional taxidermist. All sorts of people sell birds and birds eggs, and portions of birds' skins and feathers of birds, who are not taxidermists or professional business men. But they are all roped in under subsection (2) of Clause 3.
By January I, when this Bill is to come into operation, it will be presumed, so far as I can make out, that every owner who wishes to sell the plumage, or skin, or eggs of any birds mentioned in Category 1 has got that bird in contravention of the provisions of this Bill. I want to know—and this again is a question of the legal interpretation—if a blown egg is an egg within the meaning of this clause. It is not defined, and if the noble and learned Lord, Lord Sumner, who I see opposite, will devote his mind to this subject I shall be glad. Subsection (3) of this clause deals, I suppose, with imported stuff. I do not know whether it is intended to make it difficult or impossible to import birds, plumage and eggs of the more rare categories. Here, again, the guilt is assumed. If anyone possesses these things, not merely for the purposes of sale but if he is found in possession of any bird or plumage, it is assumed that there- is reasonable ground for believing that the bird or plumage was killed or taken at a time when it was 867 protected by this Bill. That provision is going to make enemies of the very people whom we want to help in protecting bird life. I do not know what the bearing of this subsection will be on cold storage, but it is a point to which some attention should be given. Paragraph (c) of this subsection is drawn in such manner that you make it a crime for a boy to have in his possession a bird which he may have picked up dead in a country lane. I do not offer any observations about the lapwing except that there seems to be a hiatus of fourteen days which is not accounted for.
§ Clause 5 deals with the register to be, kept by taxidermists. It is difficult to define a taxidermist, or anybody who carries on business as a taxidermist, or anybody who buys and sells birds' eggs. There are tens of thousands of people in this country who sell and buy dead birds and birds' eggs who, if the authorities took an extreme view of this provision, would be roped in as taxidermists and made to register. The big people will not mind, of course—the auditing of their accounts is, in fact, a register—but it is the small people who will evade this clause. When a rare bird is brought in to the local man in the village who is in the habit of stuffing animals he will say, "This is a rare bird. You have committed an offence in taking it. On the whole you would do better to put this bird at the back of the fire."
§ Perhaps the greatest injury to archæological research in this country has been the attitude of the authorities towards treasure trove. It is perfectly heartrending to read accounts of the way in which magnificent, superb, and sometimes unique, objects of precious metals, of plastic beauty unquestionably of great value, tracing the history of our remote ancestors, have been smashed by artisans, peasants and farmers, who have dicovered them, because the State has been in advance of public opinion and has made penalties incommensurable in value in the eyes of the persons who are most likely to make finds. It would be disastrous if by anything we do in this Bill we should destroy the evidence of our rare birds by making these people evade the clear provisions of this measure by putting out of the way something which might get them into serious trouble.
§ I say nothing as to the cruelty; that is dealt with in the existing law. As to the 868 miscellaneous provisions it is a good thing to apply in this country the law which prevails in certain States of America and stop mechanically propelled boats being used to kill birds. But it is notable that it will be illegal to shoot duck off a steam yacht, and it is going too far to give the police powder to confiscate the steam yacht or motor punt from which such an offence has been committed. There is a certain confusion in this Bill. One clause makes it illegal for any person to kill or take or attempt to kill or take any bird on Sunday. On the whole it would be a much greater protection to birds if you made it Saturday instead of Sunday, but I do not think there is anything inherently wrong in leaving a duck decoy open over the week end. And it must be made possible for a farmer to scare a pack of sparrows who are playing loose with his overripe crops, not with a rattle or by waving a flag but by a charge of small shot.
§ It is extremely technical and I do not understand the whole implication of the subsection in Clause 8 with regard to a local authority granting licences to take birds for the purpose of sale alive, or to sell live birds or expose them for sale. In this connection, and in the same clause further down, there is some obscurity as to the place where such an offence is committed. In subsection (3) of Clause 7 a constable is given power to enter upon any land or premises without the consent of the occupier if he has reasonable cause to suspect that an offence under this subsection is being, or is about to be, committed on the land or premises. It is in the towns where the greater part of these outrages with regard to bird liming are hatched and it is obviously not the place where the offence is to be committed. I think that there and in subsection (5) of Clause 11 a certain amount of drafting amendment would be useful. As regards the advisory committees, I think they serve a useful purpose, but I should have been inclined to follow the lines suggested by the Montagu Committee, which did not wish to have these committees wholly nominated by the Secretary of State.
§
As regards the offences, Lord Grey seemed to think that the penalties created in this Bill were small. I assure him that in my opinion they are really very serious. I hope that the House is not going to
869
make them any more serious, because if they do so the Bill will be a dead letter. What does Clause 11 say?—
If any person is guilty of an offence against this Act,"—
down to the schoolboy of fourteen——
he shall be liable on a summary conviction to a fine not exceeding five pounds or in the case of a second or subsequent offence to a fine not exceeding ten pounds, or imprisonment for a period not exceeding one month.
If you turn to Subsection (5) of Clause 11 you find that:—
Where an offence under this Act is in respect of more than one bird, egg, or nest, the fines prescribed by this Act may be increased in proportion to the number of birds, eggs, or nests in respect of which the offence was committed.
That is to say, if a boy gets a clutch of half a dozen eggs he is liable at once, on his first, offence, not to a fine of £5 but to a fine of £30, and on a subsequent offence he is liable not merely to imprisonment for one month but to imprisonment for six months. Is not that drastic enough for the most advanced lovers of our wild birds? Surely that gives every chance to any bench of magistrates to inflict the most swingeing and the most deterrent punishments.
§ I notice that the section of which I am speaking does not apply to Scotland. I suppose Lord Novar thought that it was really too severe and I am bound to say that I agree with that view. There is no objection to confiscating the birds or eggs. I remember that when I was a lad I used to nest in Richmond Park, for which I used, during the last year or two, to be officially responsible. It was very wrong of me, and I used to be caught from time to time by the gamekeeper. For a considerable rime the stolen eggs used to be confiscated and crushed by the keeper's boot, but that was found to be an insufficient deterrent and the last time I was caught in Richmond Park stealing eggs I was made to swallow five. Keep the eggs by all means, put them into a museum by all means, but do not trust too much to confiscation. It is not any good confiscating a motor boat, or indeed a vehicle, as might be done under the Third Schedule if it were regarded as an instrument which was being used for the purpose of taking birds or eggs.
§ The only other question I wish to ask is this. I want to know what would be 870 the jurisdiction of the Admiralty. It does not apply to water where the boundaries of two local authorities coincide, for that debatable area is already accounted for. I should like an assurance that there is no intention of carrying this measure beyond the three-mile limit. I think that would be rather unfortunate. But in subsection 3 of Clause 11 I find a reference to offences being committed "on the high seas"—in inverted commas. I do not like inverted commas anywhere except in a definition clause, and the definition clause, as it happens, does not define "on the high seas." Whether this applies to great estuaries or to waters outside the three-mile limit the area of jurisdiction ought to be more carefully defined. I do not know whether it will fall to the Admiralty to carry out prosecutions, but I should be inclined to leave the point out altogether.
§ I have made a number of criticisms which, I think, with two or three exceptions, could probably be called Committee criticisms, but cumulatively they have an importance in relation to the future progress of this Bill. I do not think we want to inquire any further into the desirability of protecting small birds. I believe public opinion to be strongly in favour of that protection and to be growing in force every day. What we do want is to avoid looking upon this as a final measure. In years to come Category 3 will diminish at the expense of Category 2, and Category 1 will increase at the expense of Category 2 and the subordinate category. That is the object at which we ought ultimately to aim, and we should not look at this Bill as the final word in wild bird protection, but be satisfied with making-it the final word according to the public-opinion of the day.
§ I should like to urge, therefore, that in order to meet the half dozen criticisms that I have made of points each one of which in my opinion is retrogressive in the sense that it will not promote but rather retard the movement to preserve wild birds, the Bill should be sent to a Select Committee. We do not need any further inquiry into the general question of protection. What we need is a more careful scrutiny of how much public opinion will stand, how much public opinion is prepared to work for, and, above all, how much public opinion is prepared to support in the way of penalties. 871 I think such an object is more likely to be obtained in two or three rather informal conferences, such as Select Committees hold, than in any other way, and I hope that this suggestion will receive the sympathetic support of the promoters of the Bill.
§ LORD BUCKMASTERMy Lords, I was indeed glad to hear from the concluding sentences of the noble Earl's speech that he was generally in favour of this Bill. I knew, and no doubt many of your Lordships knew, that he took a very keen and a very sincere interest in the welfare of birds, but I am bound to say that until the last few words of his speech I thought his remarks were directed to the destruction of this measure, because although it is true that a great number of his criticisms were, strictly speaking, of a character suitable to the Committee stage, they were undoubtedly marshalled together for the purpose of showing that the whole Bill as it stood was unworthy of your Lordships' support. I cannot help feeling that a great deal of the noble Earl's criticism is due to the fact that there is some misunderstanding about the meaning of the Bill. I do not intend for a moment to dogmatise about the Bill. All Acts of Parliament agree in this, that their language is obscure. I do not think there is any exception to that one general rule.
As I understand this Bill, however, it proceeds upon this footing. The whole class of birds is to be divided into three categories. There is a category in which birds are protected both as regards themselves and as regards their nests. Those are the birds that are specified in the First Schedule. They get universal protection unless anyone obtains permission to enable him to destroy them. Then there is the second Category, where the birds are protected during the close season. Then comes the third Category; and it is here that I think the noble Earl has stumbled, because the third Category is the category in which birds are protected as regards the birds themselves, but not as regards their nests and eggs during the close season against any person except the owner or occupier. That, as I understand it, means that the egg stealer may commit trespass as much as he pleases during the nesting season on 872 anybody's land—providing he is not caught—for the purpose of obtaining the eggs of birds in Category 3, but he must not go with a gun. If anybody wants to destroy the birds the owner or occupier of the place where the birds are is the person to do it, and I do not see anything very unreasonable in that. I should have thought that an Act of Parliament which, on the face of it, recognised the right of people to wander over other people's land for the purpose of destroying birds would not receive much support in your Lordships' House.
It is said that this Bill still leaves open the question of bird nesting. I suggest to the noble Earl that if he has any doubt about that he should put down Amendments to make what I understand to be the meaning of the Bill perfectly plain. Then the noble Earl, having, as I think, misunderstood Category 3, proceeds to misconceive the meaning of the clause with regard to licences. You do not have to obtain a licence under Category 3. Licences are only wanted for Categories 1 and 2. I think when that is considered, should it be accepted as the meaning of the Bill, it removes a great deal of what the noble Earl has said, but if he still thinks the Bill obscure, I suggest that he should bring forward Amendments to make it plain, and I am sure that the noble Viscount in charge of the Bill will do everything to facilitate them.
The next class of criticism to which the noble Earl directed attention was this. He said public opinion is growing and it is in your favour. Public opinion is a great support, but I want to know what is the use of public opinion without an Act of Parliament. It is perfectly useless. The only thing you can do is to formulate public opinion by Statute, and then it is astonishing how greatly, if your Statute is properly drawn, the weight of public opinion is increased. Of that we have abundant proof from the way in which public opinion has grown since the passing of the Children's Protection Act. So I say that the function of an Act of Parliament is not merely to put into operation what people think at the moment. You have always got to keep just a little ahead of public opinion, and I do not think that public opinion in favour of the protection of wild birds will thank you if you leave it without the means of making that opinion felt.
873 The noble Earl referred to the taxidermists. What does he mean about making friends with the village taxidermist? If it is not an offence the village taxidermist may be as friendly as possible, but he has his living to make, and he will continue to stuff birds, and I do not think you can carry out the provisions of this Bill unless you impose penalties upon people who infringe the law. The noble Earl also says that the penalties are ridiculous, and ought to be revised. I took time to consider how it was that he thought a steam yacht was going to be confiscated if a wild duck was shot from it. It takes ingenuity to discover that. I think he has discovered it from Clause 11, subsection (2), which says that the Court may order any bird, nest, or egg, in respect of which the offence was committed, to be forfeited, and that the Court may order any gun or other instrument, in respect of or by means of which the offence was committed, to be forfeited. Now I imagine that the noble Earl says that if you shoot a duck from a steam yacht the steam yacht is the instrument "in respect of or by means of which the offence was committed." If that is not the way in which he has introduced his argument, I shall be glad if he will tell me where it does come in.
§ LORD BUCKMASTERThen the noble Earl does not mean subsection (2) of Clause 11, which I have been reading.
§ LORD BUCKMASTERI should have thought that as a matter of construction "gun or other instrument" can hardly include a steam yacht. If there is any doubt about it, then let him move to amend by inserting the words "not including steam yacht." It is not the first time that His Majesty's Judges have been confronted with these difficulties of legislation, and I have no doubt they will be able to find a way out. Finally, the noble Earl points out that the offences are cumulative, and he says that the noble Viscount, Lord Novar, who is discreetly absent, is responsible for the omission of Scotland. Where does he find that Scotland has not got the provision about the multiplication of offences.
THE EARL OF CRAWFORDClause 11, subsection (5) says:—
Where an offence under this Act is in respect of more than one bird, egg, or nest, the fines prescribed by this Act may be increased in proportion to the number of birds, eggs, or nests, in respect of which the offence was committed.Then, on page 10, line 7, Clause 17 says, "Subsection (5) of Section 11 shall not apply" to Scotland.
LORD BUCKMASTKRI think the noble Earl has discovered what was unknown to me, and I believe to Lord Grey, and it may be that Lord Novar was in this respect able to use his influence. If there is a muddle about it, it is the easiest thing in the world to put it right. These penalties do not shock me at all. I do cot see why you should assume that a bench of magistrates are going to exercise their discretion in an utterly harsh and unreasonable manner. It is not in the least likely that they are going to fine a village boy £30 for taking a nest with eggs in it. The whole elasticity of our criminal law always depends upon the hypothesis, generally justified, that the men administering the law are as sensible as the men who make it, and that they will not go out of their way to render an Act ridiculous by imposing penalties which are within their power but out of all possible proportion to the measure of the offence. If it is required to consider further whether the imprisonment period should be increased, it can be readily done in Committee.
Having anxiously listened to the speech of the noble Earl, I sec no reason why your Lordships should not read the Bill a second time, and I hope you will do so. It may be found that in some of these categories you want further elasticity than is afforded by the way in which they are drawn, but I think that your Lordships who must view, equally with the noble Viscount, the noble Earl who blessed the Bill with criticism, and myself, with great anxiety—and I would go further and say with distress—the swift destruction of the beauty of nature by the destruction of our birds, will hesitate a long time before you refuse a Second Reading to a Bill so carefully prepared, which has received the warm support and advocacy of Lord Grey.
THE PARLIAMENTARY SECRETARY OF THE BOARD OF EDUCATION (THE EAEL OF ONSLOW)My Lords, I think from what was said by the noble Viscount who introduced this Bill your Lordships will understand that it is one of which the Government approve, and which has been prepared in consultation with the Department. Indeed, had it not been for the pressure of other business the Government would have been willing to consider the possibility of producing a Bill for this purpose, as a Government Bill. The noble Viscount has now introduced this Bill as a private Member's Bill. It has received a considerable amount of criticism from the noble Earl opposite, but, as he says, his criticisms are mainly of a Committee nature—criticisms which would doubtless be embodied in Amendments to be moved to the Bill if your Lordships should give it a Second Reading. In these circumstances I trust that your Lordships will read the Bill a second time to-day. It has been prepared at great pains in my right hon. friend's Department, in consultation with the noble Viscount. As regards the future of the Bill in another place, the Government are not in a position to make any definite promise, because, of course, we cannot prophesy the state of affairs, but if the Bill should emerge from your Lordships' House in such a shape that His Majesty's Government could accept it, and also if it were not of a controversial character in another place, we hope that it would be possible to find time for its passage into law.
§ VISCOUNT GREY OF FALLODONMy Lords, already more time has been consumed on this Bill than I anticipated, but, with your Lordships' permission, I must say one or two things in reply to the noble Earl, Lord Crawford, if only to remove some misapprehensions on the points he raised. I should like to say that I recognise the services which the noble Earl himself rendered with regard to bird protection when he had the opportunity of making sanctuaries in the London parks. I am convinced that he has real good will and a real care for bird protection in the same spirit as many of the rest of us who are specially interested in the subject. But I must say that this makes it all the more difficult to understand the spirit in which he criticised this Bill. It seemed 876 to me that on every possible point where there was a possibility of misconception he gave the interpretation always against the Bill. I doubt whether any legislation which was ever passed, however excellent it may have been, could have got through Parliament if it had been subjected to an examination so very critical, and to such an unreasonable construction as, I think, has been placed upon many of the clauses of this Bill.
For instance, on the question of birds in categories I think the Bill is perfectly plain. Birds in Category 3 are not protected against owner or occupier. If wood pigeons or sparrows are doing mischief the owner or occupier is not committing any offence under the Bill if he destroys them on his own land, or if he employs other people to destroy them on his own land. But if the person is not a member of his family, but someone outside, he has to give an authorisation in writing. He requires no licence to deal with birds like sparrows or the wood pigeon, or any of the birds in Category 3; he requires a licence only if he wants permission to do something which is in contravention of the provisions of the measure. If he wants to do that, to kill birds in Categories 1 or 2—the two categories which are kept so small—then he must, no doubt, apply for a licence. But he is not committing any offence against the Bill if he destroys on his own land, or authorises someone else to destroy, birds in Category 3, which form the vast number of birds in this country. So that, as regards protection against noxious birds, like wood pigeons or sparrows, the owner or occupier requires no licence. If that is not plain I am quite willing that it should be made plain in the Bill. If the noble Earl puts down an Amendment I should like, of course, to be advised by the competent drafting authorities who have drafted this Bill that an Amendment which looks like an improvement is not really going to be, from a drafting point of view, something which will defeat the measure, but I am quite willing to accept anything which will make that point clear beyond all doubt.
With regard to birds in Categories 1 and 2, what was in my mind when I was speaking was the instance of the raven. The noble Earl himself took the case of the peregrine, which is on all fours with that of the raven. In England the raven 877 is a rare breeding species, a noble and interesting species deserving of protection. Where it multiplies it may be a great nuisance, and we deliberately contemplated in this Bill that in Scotland, and possibly some parts of England, licences would have to be given in order to prevent the raven from doing-damage where it is too numerous. And so with the peregrine. The birds in Categories 1 and 2 are comparatively limited in numbers. And the numbers of those among them which may be noxious where they increase is also limited; but in those few places where comparatively rare birds are becoming so common as to be a nuisance the Home Secretary or the Secretary of State for Scotland can, by giving licences to have the birds killed, accomplish everything, I think, which the noble Earl desires on that point. With regard to the provision in Clause 17 which states that subsection (5) of Clause 11 does not apply to Scotland I have made inquiries, and I find that that is a drafting mistake, which I had not noticed. It ought not to be like that in the Bill at all. That, of course, can be put right.
There are various small points which I need not go into, such as killing on Sundays. I think that is taken from some previous legislation. It is not a point to which I attach importance. If the noble Earl wishes to move an Amendment on small points like that I have no doubt that we could meet him. The hiatus which he complained of about the lapwing's eggs occurs for this reason. Those eggs are not to be taken after April 15. That would, enable the second layings of the lapwing's eggs to be protected and to be hatched. The eggs may be taken before April 15 and remain fresh for at least a fortnight, and so they are allowed to be sold for a fortnight after the date which is legal for taking them. The lapwing is a bird by which some county councils set such store that they protect it altogether—eggs, birds, and everything—in their own counties. But I do not think the noble Earl wished to weaken the provisions about the lapwing—I hope your Lordships will not do that, With regard to the three-mile limit, of course I agree that that should be very jealously guarded, and I will have inquiries made as to what is meant by the powers of the Admiralty under that head. With 878 regard to penalties, I do not think it is reasonable to assume that any bench would impose unreasonable penalties for a very small offence.
THE EARL OF CRAWFORDI think Lord Buckmaster was under the same misapprehension as the noble Viscount on that point. I never said that the penalties would be excessive; what I thought was that they were quite adequate, but I entered a protest against any idea that they ought to be increased.
§ VISCOUNT GREY OF FALLODONI beg the noble Earl's pardon. When I was talking about penalties, what I had in my mind was the abolition of the penalty of imprisonment and the substitution for it of the confiscation of private collections belonging to the offenders. I was not thinking of an increase of the penalties in the Bill, but the substitution of a penalty which, I think, would be far more effective. But I did not propose to press that point. I do not quite know what the noble Earl's opinion upon it is, but should he wish to press it, I should regard the discussion with sympathy.
With regard to the black list, of course the Departmental Committee felt considerable difficulty about it. That is the point which the noble Earl raised, of naming definitely a certain list of noxious birds which are to be open to destruction by anybody. I do not think anything would be gained by a black list. The wood pigeon and the sparrow, for instance, would certainly be in the black list, but an owner or occupier can destroy them or have them destroyed on his own land now, and I do not think anything would be gained by putting them in a list to enable the public to destroy them in the close season. There is no protection for them at all outside the close season. If the noble Earl wishes to draft a black list, though the Departmental Committee felt considerable difficulty as to its merits, I do not see any reason why it should not be considered in Committee. But I would suggest that the Bill is already the outcome of consideration by a very able Departmental Committee and has already been considered by two advisory committees. Amendments which may be reasonable and which do not affect the real principle and scope of the Bill I think could be very easily dealt with in 879 Committee of your Lordships' House as a whole. I very much deprecate the Bill being sent to a Select Committee, and if your Lordships read it a second time I would urge that it be dealt with in the ordinary way in Committee of your Lordships' House later on.
I hope that I have removed one or two misconceptions from the mind of the noble Earl or, at any rate, made it clear that on one of the most important points he has raised I am willing to remove any objection by accepting any Amendment that will make it absolutely clear that the construction which ho placed on the Bill as to the powers of owners and occupiers is not that which was intended. If there is any doubt about it, I would infinitely prefer that it should be made quite clear than be left obscure.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.