§ Order of the Day for the Second Reading read.
§ LORD BAYFORD
My Lords, the objects of the present Bill are sufficiently defined in the title—"an Act to consolidate and amend the enactments relating to game." These Game Laws have been enacted piecemeal until to-day they are to be found in Statutes some of which arts over one hundred and most of which over seventy years old, and some of them under headings so various as Customs and Inland Revenue Act, Wild Birds Protection Act, and the Protection of Animals Act. To-day, if you wish to discover the law relating to game, you have to turn backwards and forwards from section to section of a number of different Acts, and when this fails you must look at the Law Reports in which certain cases decided that the Acts meant something that they certainly do not say.
To give you one example of the doubts and difficulties with which the subject is fraught, I am informed on legal authority that it was not until the latest edition of Halsbury's Laws of England, 966 which is actually to be published in the present year, that it was discovered by the lawyers themselves that an Act passed as long ago as 1848—namely, the Hares Act—did not make the shooting of game by night illegal, while it took thirty years for the Courts to decide that the Ground Game Act of 1880, although it said that no person could shoot hares or rabbits by night, meant that although a non-occupying shooting tenant could shoot them by night he could not do so if he happened to live on the land over which he possessed the shooting rights. Accordingly the present Bill, which is the result of the deliberations of a committee of legal and sporting experts, containing several members of this House, who have been at work on the subject for more than two years, represents an attempt to produce order from chaos and to state in a readily accessible form what the law relating to game in this country really is.
This brings me to the second object referred to in the short title—namely, "to amend." It requires no elaboration to make it easily understood that when the law is derived from so many and such different Statutes discrepancies have crept in and obsolete measures have been perpetuated. I want to give a few examples of some of the absurdities which are the result of historical accidents. For instance, because the offence of night poaching was dealt with by an Act of 1828 and the offence of day poaching by an Act of 1831, a gamekeeper appointed by a non-occupying shooting tenant cannot arrest a poacher by night, though he can do so by day. It is thus possible to have the spectacle of a gamekeeper anxiously awaiting the hour before sunrise so that he may arrest a poacher who is stealing his master's game. If he does so he gains another advantage, for a day poacher upon conviction forfeits his licence to kill game or carry a gun, whereas a night poacher, although a more serious offender, does not. Rights are given to gamekeepers by an Act of 1831 and to policemen by an Act of 1862. The gamekeepers can arrest but cannot search day poachers when they are on private land, while policemen cannot arrest but can search day poachers when they are on the highway. The gamekeeper can ask for the poacher's name and address while the policeman cannot.
Other absurdities have arisen owing to the growth of progress. Thus, when the 967 Game Act of 1831 was passed there were stage-coaches, but there was no cold storage. Accordingly, although there are elaborate provisions to ensure that guards and drivers of stage-coaches shall not be entitled to become game dealers, no provision exists for the legalisation of keeping birds in cold storage for consumption in the close season. Take another point: If one were asked to define the word "game" to-day one would be at a complete loss. Snipe and woodcock are game for the purposes of the Poaching Prevention Act and for the purposes of the Revenue law, but not game for the purposes of the Game Act. Rabbits are game only for the purposes of the Poaching Prevention Act and under the name of conies for the Revenue law.
From that muddle as to the definition of game there arise a great many anomalies. Suppose an intruder comes on to land to shoot snipe or woodcock, he cannot be arrested or given into custody by the owner or occupier of the land or his servant. He probably cannot even be turned off the land by the non-occupying shooting tenant or by his gamekeeper; but if, after poaching for snipe or woodcock, he ventures on to the highway a policeman, but no one else, may search him but may not arrest him, may confiscate his poached birds and his gun but may not demand his name and address. Take, again, rabbits. Gamekeepers can arrest poachers whilst stealing rabbits but cannot confiscate the rabbits. Policemen, when the poacher comes on to the highway, can confiscate the rabbits but cannot arrest the poacher. If the poacher is arrested by the gamekeeper the fine is £2 and if he is summoned by the policeman the fine is £5. Finally, take the case of the contentious policeman who sees a poacher actually poaching game within a yard of the highway. He can do one of two things; either he can go and find the owner of the shooting rights and get his permission to enter the land and arrest the poacher, by which time the poacher would probably have got away, or he can wait patiently until the poacher comes on to the highway, in which case the poacher is likely to take another way home.
These examples are probably sufficient to show the urgent need for some measure of amendment, though it is important 968 to bear in mind that not only are important rights of property affected, but also the incidence of fines and imprisonment depend upon technical absurdities of this kind. There is another strong reason for revision. In the days when the Game Laws were passed the game was, as a rule, shot by the great landlords upon their own land. The syndicate sportsman was practically unknown. To-day shooting has become a much more democratic sport. The country solicitor, the estate agent and the small business man from the town, have taken the place of the great landlords and they join syndicates for shooting other people's land, bringing a new source of income from the towns to the countryside. Rough shoots over farms are taken by all kinds and descriptions of people. I am informed that they are taken by unemployed miners in Wales and by clerks in City offices. Each of these adds something to the farmer's income, while the tremendous growth of the practice of shooting driven birds has caused the expenditure by shooting men and the receipt by a variety of members of the rural population of considerable sums for beaters' pay.
Just as the Game Laws failed to protect the new sportsmen they may also fail to punish the new poacher. Of recent years there has arisen a very real menace to the game population of the country. I suppose there is a certain amount of secret sympathy from a good many people for the bona fide poacher, the poor man who, in order to give his family supper, kills a few rabbits, but no one will sympathise at all with the man who can afford an expensive motor car and gun, and who goes out from the town to fill his bag at someone else's expense. The ordinary old-fashioned poacher may have been a naturalist and a sportsman—I dare say he very often was—but his modern counterpart is really a mean and rather despicable thief. This is a form of offence which is increasing at an alarming rate and under the present law the difficulties of catching offenders who work in gangs large enough to overcome the local keepers are well nigh insuperable.
Before embarking on an account of what the Bill is intended to do I should like to make clear what it is not intended to do. In the first place, there is nothing in the Bill which will affect the revenue 969 from gaming licences and so on. As a consequence of its passing into law not a single penny less will be taken by the revenue, nor will the procedure as to gaining licences be changed in any way. In the second place there are various provisions as to game which have been considered to be framed more for the purpose of protecting the farmer than for the benefit of the sportsman. The Ground Game Acts are left unaltered by this Bill altogether. A noble Lord, a. member of this House, who says he is interested in the Bill, has sent me various conundrums. I will only give one of them. It is: Whose property is a hare caught in a lawn tennis net on tae village recreation ground? This Bill does not intend to deal with questions like that. The Bill does not apply to Scotland or to Northern Ireland. The Parliament of Northern Ireland has been more enterprising than the Parliament in England and has already brought its Game Laws up to date. As your Lordships will see, the present Bill has made use of the experience of Northern Ireland and there have been inserted in it one or two provisions which are now law in that country. In Scotland, on the other hand, the Game Laws are different from those in England and it is impossible to incorporate provisions for both countries in the same Act. Accordingly, the question of the Scottish Game Laws has been considered outside the scope of this Bill and will require a special Bill of its own. Certainly I should not be responsible for introducing any such Bill myself.
So much for what the Bill does not do. Now, as to what it does. In the main this can be most conveniently dealt with by passing quickly through the various parts of the Bill itself, but it may be useful to start with an explanation of the chief amendments which are affected. The first purpose of the Bill is to provide a uniform definition of "game" which, under the Bill, will include hares, pheasants, partridges, grouse, black game (which are already treated as game in all present enactments) and ptarmigan, capercailzie, woodcock, snipe and wild duck, of which woodcock and snipe are already game for the purposes of revenue licences and the Poaching Prevention Act, while the others mentioned are not at present game at all. The second pur- 970 pose of the Bill, which is a corollary of the first, is to remove woodcock, snipe and wild duck from the scope of the Wild Birds Protection Acts and to bring them under the uniform protection of the Game Laws. The protection afforded to these birds under the present Bill is in no way less than that which they at present enjoy, but such protection is more uniform. At present under the Wild Birds Protection Act each county council makes its own close time for killing these birds. Thus, it is possible to shoot woodcock in West Suffolk in the month of February while, if the same bird crosses the boundary into Norfolk, to kill it then becomes a crime.
To give one more example of the same sort of anomaly, there is a landowner who has land that falls within no less than four adjacent county divisions—namely, Lincolnshire, Huntingdonshire, Northamptonshire and the Soke of Peterborough. If he shoots wild duck on March 1 it is illegal in Lincolnshire but nowhere else. If he shoots it on March 2 it is illegal in Lincolnshire, Huntingdonshire and Northamptonshire but legal in the Soke of Peterborough. If he shoots it on August 15 it is illegal everywhere but in Northamptonshire, while on August 16 it becomes legal in Lincolnshire as well. Not until September 1 is it legal on the whole of his property. Surely that must show the absurdity of the present state of things.
I want to say a special word about wild duck being brought within the protection of the Game Laws. At the present day wildfowling on the tidal flats and estuaries is the livelihood of many wild-fowlers, and there and elsewhere it is the sport of a very large number of poor men. To shoot wild duck no game licence is at present needed and care has been taken throughout the present Bill to enact no measure which will restrict or add to the cost of the poor man's sport. For this reason, at the instance of the Wild-fowlers' Association, who have cooperated in the making of this Bill and approve of its provisions, wild duck, although given the protection of the Bill, are not subject to a close time on Sundays, nor is there any necessity in the Bill for obtaining a game licence for shooting these birds.
The third main amendment is to produce uniformity of the law relating to 971 poaching To-day the historical anomalies as to right of arrest, which were always accidental rather than intentional, have taken on a new seriousness when faced with the menace of a poaching gang with a high-powered car. At present these anomalies exist both as to the powers of arrest of gamekeepers, which I have already mentioned, and the powers of arrest of police constables, who at present, if they find a poacher actually at work in the day time, cannot safely enter upon the land and apprehend him but must go and obtain permission from the shooting tenant, or must wait until the poacher returns to a public highway, which the poacher probably takes very good care not to do.
The fourth main amendment is to apply to England a provision which has been already successfully applied in Northern Ireland—namely, to require dealers in game to keep a register of their purchases. This measure, which has caused no difficulty to retailers in Ireland, where it is in fact a much more onerous measure since they are there required to keep a register also of sales—this will not be required by the present Bill—has been found necessary owing to the growth of the offence of poaching by motor car. Ninety-nine per cent. of the game dealers of this country are scrupulously honest men and it is believed that there will be no opposition from that quarter. But it is the odd one per cent, which has made possible the wholesale slaughter of game by organised gangs of motor poachers, and this weakness in the present law it is one of the objects of this Bill to cure.
As to the provisions of the Bill itself, the Bill repeals the Acts of Parliament set out in the Second Schedule. Part I deals with close days and seasons and the chief effect of this Part of the Bill is to take snipe, woodcock and wild duck out of the scope of the Wild Birds Protection Act, under which Act the close season for these birds varies from county to county, and to place them all under the protection of the Game Laws with the close seasons that are set out in the First Schedule to the Bill which also makes an alteration as to the close times for game. The close times are lessened in the case of grouse, because experience has shown that it would be to the advantage of the grouse stock for keepers to have this additional time in order to kill off cock grouse. In other cases the 972 close season has been extended where any alteration has been made, so that these birds will enjoy a longer time of preservation under this Bill than they do under the present laws. The eggs of the birds I have mentioned also cease to be protected by the Wild Birds Protection Act, but receive instead the protection granted under the poaching section of this Bill. The second Amendment contained in this Part of the Bill is to impose a penalty on unsuccessful poachers and persons attempting to kill game during the close season. Under the present law a person cannot be proceeded against for killing game in the close season unless he can be proved actually to have killed. It is no offence to shoot at a bird and miss it.
Part II of the Bill deals with the right to kill game. The present law is reproduced with an alteration in the order of the sections but with no other alteration; the right to kill game being dependent on the possession of sporting rights and of a game licence, which, however, is not required for the birds which have been added to the definition of game by the present Bill, so that wild-fowlers and others will not suffer in this respect. Part III deals with gamekeepers and reproduces the present law in its entirety. Part IV deals with game dealers and reproduces the whole of the present law. It contains, however, one major and one minor amendment. The major amendment is a provision for the keeping by a dealer in game of a register of all his purchases, which shall be open to inspection by the police. This measure has been taken from the Game Preservation Act of Northern Ireland where it has been found to work successfully and to be of use in the prevention of poaching. Unlike the Irish measure, however, this Bill does not make it necessary for a game dealer to keep a register of sales. The minor amendment provides that birds kept in cold storage and killed during the lawful season may be sold during the close season.
Part V deals with poaching. This Part of the Bill is designed to produce uniformity in the law relating to the prevention of poaching and kindred offences. As has been already mentioned, woodcock, snipe and wild duck have been added to the number of birds enjoying 973 the protection of the Game Laws, inducting that portion of them which deals with poaching;, but this is not a very serious alteration as it is already possible for a police constable to stop and arrest a person who is in unlawful possession of snipe or woodcock, and for such person to be convicted. Thus, under the present state of the law a policeman can, while a gamekeeper cannot, arrest a poacher for poaching woodcock or snipe. Under the Bill this anomaly will be done away with. The stealing of game eggs, which at present for no logical reason is subject only to a special minor penalty under a section of its own, is, under this Bill, grouped with ordinary poaching of game and is subject to the same penalties. At present the position is that a person stealing game eggs, although guilty of an offence, cannot be arrested by a gamekeeper, but if he returns to the highway, after stealing the eggs, he may be searched by a police constable.
The right of arrest of night poachers has now been extended to the servants or gamekeepers of shooting tenants. This is an important and necessary amendment, to the need for which many country benches have drawn attention. The right of search of suspected poachers granted to police constables in the Northern Ireland Game Preservation Act is now extended to this country, where it replaces the corresponding provisions in the Poaching Prevention Act, 1862. When the Act was framed the man to be protected was the lord of the manor and the great landowner. Nowadays it is the new type of syndicate shooter who is mainly affected by the Game Laws. The object of these alterations is to correct the anomalies and absurdities to which I have already alluded.
Finally, the Bill brings some uniformity into the fines inflicted, providing that in all cases the fine upon second and subsequent offences shall be greater than the fine upon the first offence. It further provides that upon a second conviction the court shall be entitled to disqualify the offender from holding a game licence for five years. In no case does the Bill increase the penalty for a first offence. With regard to hares, no alteration has been made in the present law. With regard to legal proceedings, which are dealt with in Part VII, the only altera- 974 tion made in this Part of the Bill is that the period during which proceedings must be commenced has been reduced in all cases to four months for the sake of uniformity. Then there is Part VIII, which is headed "Miscellaneous." This Part of the Bill clears up various minor points. It provides for the new definition of game to include ptarmigan, capercailzie, woodcock, snipe and wild duck, but provides that no alteration shall be made as to the requirement of a licence to kill game or a licence to deal in game in connection with any of these new classes of birds so added.
Those are the main provisions of the Bill. As your Lordships will see, it is on a fairly ambitious scale, but I think I may claim that it endeavours to carry out a reform which is very badly needed. I am not sanguine enough to think that a Bill so long and of such magnitude as this is likely to pass into law during the present Session, but I venture to ask your Lordships to give it a Second Reading to-day, chiefly in order that it may arouse comment from those who are interested in the subject in various parts of the country, and that, although it will not be possible to pass it into law this Session, in another Session, either here or in another place, it may be possible to introduce fresh legislation dealing with the most urgent parts of the subject, with good hope that the common sense of the country will insist on its being passed into law.
§ Moved, That the Bill be now read 2a.—(Lord Bayford.)
§ LORD MARLEY
My Lords, I did not intend to intervene in this debate, but really so many points which are hopelessly obsolete are still included in Bills of this sort that I think it worth while making a very brief protest. The obsolete methods of dealing with trespassers, people who are suspected of having poached game, and so on, are something like three centuries out of date. It is really absurd to include in a consolidating measure of this character penalties and a point of view of that type. We are still, in country districts—and I have in mind certain definite cases—getting people found guilty of poaching as a first offence and sending them to prison for four or five or six weeks. That sort of thing is quite intolerable. It arises from the fact that certain magis- 975 trates think that the preservation of game is more important than the preservation of human rights. Therefore I feel that it is necessary to enter a protest against the continuance in Acts of this sort of that point of view with regard to the importance of game.
§ VISCOUNT ULLSWATER
My Lords, we have listened with great attention to the observations—I can hardly call it a speech—which have been read to us by the noble Lord, Lord Bayford. I can assure him that it is extremely difficult to follow them. His Bill is certainly a very complicated Bill. May I suggest that when he introduces it in a future Session he should preface it with an explanatory Memorandum, which would help us very much? His chances of passing a Bill of this kind are, I am afraid, not very bright. If he had confined himself to the consolidation of the law, I think there would not have been very much difficulty about it, but when he introduces fresh law with relation to game and the offences of poaching and so on, he raises a great number of very contentious questions which may occupy the time of your Lordships and another place for a very long period. At any rate, in order to enable members of this House and the other House, and the public, to understand what the contents of the Bill are, I hope that he will see his way to give us a brief but clear statement of the main changes which are included in his Bill.
THE EARL OF FEVERSHAM
My Lords, I wish to express to the noble Lord who has introduced this Bill my regret that it has been impossible in the time available for the Department which I represent to give to the Bill the attention which it requires and deserves. As your Lordships are no doubt aware, copies of the Bill became available only on Friday last, and the Bill, which contains fifty-five clauses, covers so wide a field that detailed examination and consideration of its provisions have proved impossible in the time. I would submit to your Lordships that the Bill before your Lordships' House contains objectionable features, inasmuch as it is not only a consolidating Bill but is also an amending Bill. It will, I think, be agreed that it is at the moment extremely difficult for this House properly to discuss a Bill of this length in which new provisions are 976 intermingled with provisions which merely consolidate the existing law.
No doubt the noble Lord who has introduced this Bill is aware that the subject of wild birds protection has received great attention, and the Home Office, in dealing with this question, is assisted by the Wild Birds Advisory Committee, a Committee over which Viscount Grey of Fallodon presided for many years. Certain proposals in the Bill are, so far as the Home Office knows, novel proposals, and my right honourable friend the Home Secretary, before coming to any conclusion on the proposals made in the Bill, thinks it only right that this Committee should be given an opportunity of considering this matter. In view of these considerations, and in view also of the assurance which the noble Lord who introduced the Bill has given me that he will not take the Bill to a further stage without giving the Home Office ample opportunity and sufficient time to consider its important amendments of the law, your Lordships will appreciate that it would be improper and in fact unnecessary for me to make a long or more substantial statement at this stage.
§ On Question, Bill read 2a.