PROTECTION OF BIRDS BILL [H.L.] (Hansard, 1 December 1953)

HL Deb 01 December 1953 vol 184 cc799-852 799

§ 4.25 p.m.

§ Order of the Day for the House to be put into Committee read.

§ Moved, That the House do now resolve itself into Committee.—(Viscount Templewood.)

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The EARL OF DROGHEDA in the Chair]

§ Clause 1:

§ Protection of wild birds, their nests and eggs

§ 1.—(1) Subject to subsections (3) and (4) of this section and to the other provisions of this Act, if any person wilfully—

(a) kills, injures or takes, or attempts to kill, injure or take, any wild bird; or
(b) takes, damages or destroys the nest of any wild bird while that nest is in use; or
(c) takes or destroys an egg of any wild bird included in the First Schedule to this Act,

he shall be guilty of an offence against this Act and, if that offence is committed in respect of a bird included in the said First Schedule or in respect of the nest or egg of such a bird, shall be liable to a special penalty.

§ (2) Without prejudice to paragraph (c) of the foregoing subsection, the Secretary of State may by order prohibit the taking or destruction in the whole or any specified part of Great Britain of the eggs of any wild bird specified in the order, other than a bird included in the Second Schedule to this Act; and, subject to the provisions of this Act, any person who wilfully takes or destroys any egg in contravention of such an order shall be guilty of an offence against this Act:

§ Provided that an order shall not be made under this subsection with respect to part only of any administrative area.

§ (3) Paragraph (a) of subsection (1) of this section shall not apply—

§ Provided that— (i) this subsection shall not have effect in Scotland on Sundays;

§ (4) Paragraph (b) of subsection (1) of this section shall not apply where the person is an authorised person and the bird is included in the Second Schedule to this Act.

§ (5) In this section, the expression "close season" means, subject to the provisions of section eight of this Act—

(a) in the case of capercaillie and woodcock, the period in any year commencing with the first day of February and ending with the thirtieth day of September;
(b) in the case of snipe in Scotland, the period in any year commencing with the first day of February and ending with the eleventh day of August;
(c) in the case of wild duck and wild geese in or over any area below high water mark of ordinary spring tides, the period in any year commencing with the twenty-first day of February and ending with the thirty-first day of August;

Provided that the Secretary of State may by order made with respect to the whole or any specified part of Great Britain extend any of the periods aforesaid in the case of any wild bird specified in the order.

§ LORD BURDEN
On behalf of my noble and learned Leader, I beg to move the Amendment standing in his name on the Marshalled List. The Committee will see that this Amendment extends the subsection considerably, but, I venture to suggest, in a desirable manner. We are anxious that nothing should be put into this Bill to prevent the scientific study of bird life. It was felt by some who have given consideration to the matter, however, that the subsection as it stands is not wide enough to prevent the damage which might be anticipated in some quarters. I see that my noble and learned friend has now arrived, and having moved the Amendment formally in that way, I will leave it to him to continue the argument. I beg to move.

§ Amendment moved— Page 1, line 10, after ("use") insert ("or endangers the contents of such nest by disturbing the nesting-site without due care:").—(Lord Burden.)

§ EARL JOWITT
I am grateful to my noble friend for helping me. The discussion on the previous Bill ended rather suddenly and your Lordships will forgive me for not being here. I am not thinking of pressing this Amendment to a Division; I raise it merely in order that it may be considered. There is a class of person to-day who no longer collects eggs but thinks to himself that he will get photographs of birds' eggs and of birds nesting, and that sort of thing—as, in the old days, Cherry Kearton used to do. We probably all saw his pictures. That is an admirable thing to do. But if it is done by an unskilful person, who puts up an ill-concealed camera, the result is far more disastrous than the taking of an egg, because, as often as not, the bird will desert the nest, and that is a great misfortune. I do not know whether it is possible in any way to stop the action of 801 such persons, but in the hope that it may be possible I propose the insertion of this phrase: or endangers the contents of such nest by disturbing the nesting-site without due care. I am sure I shall have the good wishes of everybody in my endeavour, but I am not at all sure that my Amendment is practical, and I move it really in order that it may be considered.
I should like to know from the noble Viscount in charge of the Bill what his view is about the meaning of Clause 1 (1) (b). The phrase is as follows: subject to subsections (3) and (4) of this section … if any person wilfully"— now come the critical words— … takes, damages or destroys the nest of any wild bird while that nest is in use … Does that mean literally destroys the nest and the structure in which the eggs are laid, or does it mean—as it does colloquially—takes all the eggs in the nest? If you find a thrush's nest with four eggs in it and you leave the nest intact but take all four eggs, have you or have you not "destroyed the nest"? I am not sure. Of course, in the case of certain other birds, for instance the guillemot and many sea birds, there is no nest and the eggs are laid just on the bare rock. In the case of a partridge you find practically no nest at all, and in the case of a puffin you find the nest down a rabbit hole. I thought I would mention this point now, because it is a little hard to leave this obvious ambiguity to a magistrate, who would have to propound to himself this question: "This small boy took every single egg in the nest: has he or has he not destroyed the nest?" I do not know what the answer is, but I raise the matter now so that between now and the Report stage the noble Viscount may have it looked at and consider whether or not it would be desirable to clear up this problem. At present I feel it is hardly fair to leave the magistrate who might have to decide this case to solve a problem which we ought to decide for ourselves. I say that in connection with the clause. Perhaps the other question—endangering the site by photography—might also be considered.

§ VISCOUNT TEMPLEWOOD
With reference to the last point raised by the noble and learned Earl, I am informed that "destruction of the nest" would mean destruction of the nest as apart from 802 the taking of the eggs. But if the noble and learned Earl has any comment to make upon that point, perhaps he will let me know between now and the Report stage. That, however, is the position at present. Secondly, as to the actual Amendment, I entirely agree with its object. My difficulty in accepting it is that, as I think the noble and learned Earl himself will see, his words might well be difficult to interpret in a court of law. What I will say to-day is that I will look into the matter again in view of what he has said, and see whether we can get some more precise words before the Report stage. It may be that we shall not be able to do so, but I will try.

§ EARL JOWITT
In view of what the noble Viscount has said, I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ 4.32 p.m.

§ LORD GIFFORD moved, in subsection (1) (c), after "bird" to insert "other than a moorhen or coot." The noble Lord said: I should like, with the permission of the Committee, to discuss Amendments Nos. 2 and 3 together. Indeed, Clause 3 also should be considered at the same time, since the object of these Amendments is to include all the birds mentioned in the Third Schedule, except the moorhen and the coot, among those birds whose eggs are protected. I do not, however, feel it would be right that the taking of the eggs of the birds mentioned in the Third Schedule should be liable to such severe penalties as the taking of the eggs of the rare birds named in the First Schedule. I know it was the intention of the noble Viscount, Lord Templewood, to get these heavy penalties especially for those who take the eggs of very rare birds. If my Amendment is agreed to, it will mean that the eggs of all the birds in the Third Schedule, mostly duck and marsh birds, will be protected in the close season as regards the taking of their eggs. That is with the exception of the moorhen and the coot whose eggs, I think, should not be protected. I know that Lord Templewood has an Amendment which would probably have the same effect; but the object of this Bill is to simplify as much as possible the law with regard to birds. My Amendment, I think, makes it absolutely clear what eggs are protected and what are not, whereas the noble Viscount's 803 Amendment means referring to a large number of local ordinances to find out exactly what the state of affairs is. I beg to move.

§ Amendment moved— Page 1, line 11, after ("bird") insert ("other than a moorhen or coot").—(Lord Gifford.)

§ VISCOUNT TEMPLEWOOD
I think the Amendment which I have on the Paper achieves what the noble Lord has in mind, but in a better way. I feel that the better way is to keep all the existing regulations, for these will cover the kind of bird that the noble Lord has in mind, and to leave it to the Secretary of State to revise them if the Bill passes. I think that that is more in accordance with the structure of the Bill. With regard to the two birds which the noble Lord would exclude, the moorhen and the coot, I believe that the noble and learned Earl, Lord Jowitt, is to move later that the moorhen be included in the list of what were previously called "noxious" birds. That would meet, anyhow in part, the noble Lord's purpose. As to the coot, I do not think I should identify the coot altogether with the moorhen. The coot is often a nuisance, but nothing like the nuisance the moorhen is. In any case, the coot is not in great numbers and is a migrant: it is not here in any great extent all the year round. I hope the noble Lord will not press his Amendment and will feel that my Amendment will achieve nine-tenths of what he has in mind.

LORD GIFFORD
I thank the noble Viscount for his lucid and helpful explanation. I do not wish in any way to embarrass him by pressing this Amendment. I entirely accept his assurance that what he proposes to do amounts to the same thing and in the circumstances I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ 4.36 p.m.

§ EARL JOWITT moved, in subsection (1), to leave out "the said" and insert "Part I of the." The noble and learned Earl said: My Lords, I should like to explain this Amendment, though I shall not proceed with it, I think, if I can get the assurance I want. The position, as I follow it, is this. If "nest" means what the noble Viscount thinks, and what I think—that is to say, "nest" as opposed 804 to "egg"—there will be, as this Bill is drafted, no protection against the eggs of a bird being taken, except those of the birds named in the First Schedule. Although I agree with the noble Lord, Lord Lloyd, that we must not be too hard on the small boy, or make criminals of people who take eggs, it seems to me that the small boy has a right to take every other egg except those of birds mentioned in the First Schedule. You give him too much latitude altogether. Therefore, I have put down Amendments to put it right, and Lord Burden has tried to prepare a larger list of birds which should be protected. But I say frankly that, as I understand the matter, the noble Viscount, Lord Templewood, has now evolved a scheme which makes it unnecessary for me to press this Amendment further.

§ If I understand it aright, what he proposes to do is to say that every bird which at present has protection shall continue to have the protection which it now has. The Home Secretary, as we all know, is going to make his list; and, as I understand the matter from the noble Viscount, the Home Secretary may make a list, if he is so minded, giving the birds named protection—the protection in respect of their eggs, which at present is confined to the list of birds in the First Schedule. If that is so, and if of course the Home Secretary takes good advice, as I am sure he will, I shall be satisfied to leave it to the Home Secretary. He has at his disposal far better advice and knowledge than I can command or claim. It seems to me that that is a satisfactory way out of the difficulty.

§ There is one other point. If the noble Viscount also moves the Amendment which he has down making it possible for the Home Secretary to differentiate between area and area, it will be of advantage. I can give your Lordships a simple illustration of that. I live in a little flat in Ashley Gardens, quite near to Westminster Cathedral. It was last spring that a song thrush was there, obviously nesting somewhere and singing most beautifully. Although it may be too much to expect that you protect the egg of a song thrush in the country, yet I sincerely hope that you protect the egg of the song thrush in London. It would have been a disaster if the egg of the song thrush had been taken away in a built-up area. If the noble Viscount tells 805 me that he intends to move his Amendment so that a number of other birds may have protection in respect of their eggs, it seems to me that will be a solution of the difficulty and I shall not trouble the Committee with this Amendment or with the Amendments which I have down later on altering the Schedule. I beg to move. Amendment moved— Page 1, line 14, leave out ("the said") and insert "Part I of the").—(Earl Jowitt.)

§ VISCOUNT TEMPLEWOOD
I am much obliged to the noble and learned Earl for what he has said. First of all, he has exactly described my intention. Under the Amendment that I propose to move at the bottom of this page, I propose to leave it to the two Secretaries of State to make out a new list of birds which, though they are not included in the First Schedule, will still have protection. I think, on the whole, that is better than attempting a list. I have attempted a list of these birds and I see that the two noble Lords opposite have also attempted lists. It is most difficult to get a good list without a good deal of expert advice. I suggest that the best way to get a list of these additionally protected birds will be to leave it to the two Secretaries of State, to rely upon them to take the best possible advice and to rely upon Parliament to attack them if they do not. So much for the first point. As for the second point, I can give the noble and learned Earl an assurance that I intend to move the Amendment at the bottom of the page, which would make it possible for the two Secretaries of State to deal with particular areas, rather than only with county areas. I am glad to give the noble and learned Earl those two assurances, and I hope that he will be kind enough to withdraw the Amendment.

§ LORD BURDEN
I should like to say one word arising out of that reply. The object of the Amendments to which the noble Viscount referred was to see that under this Bill the protection of birds that are protected in different areas was not withdrawn, even for a limited period. The list to which reference has been made represents birds which are at present protected in one county or another. It has been a terrific job to get out those details, but we felt that it was necessary to do it in order to bring that point before the Committee. As I understand the noble Viscount, by Amendment No. 6 and the one, if I may refer to it, on Clause 2, it 806 is proposed to continue the measure of protection at present enjoyed by all birds—

§ VISCOUNT TEMPLEWOOD
Yes.

§ LORD BURDEN
—leaving the two Secretaries at some future date, if necessary, either to alter any protection which may at present be afforded, if it be necessary, or to extend the list by including other birds.

§ VISCOUNT TEMPLEWOOD
Yes, that is so.

§ LORD BURDEN
As I understand it, that would meet the desire of my noble and learned Leader admirably, without the trouble of the list to which we have gone to such pains to prepare.

VISCOUNT ELIBANK
Would that not give the Secretary of State very wide powers indeed? Surely it passes out of the control of Parliament? I have had a little experience in this matter because, as the noble Viscount and, perhaps, the noble and learned Earl the Leader of the Opposition may remember, I was responsible for the Plumage Bill which passed through Parliament after the First World War. I had some considerable experience of drawing up these Schedules of birds to be in or out of the protected lists. What measure of control is left to Parliament? None at all, so far as I can see. The Secretary of State might alter these Schedules, in or out, just as he saw fit. Would the noble Viscount kindly let us know how far that discretion goes, if the noble and learned Earl's Amendment is to be withdrawn?

§ LORD MATHERS
Before the noble Viscount replies to the discussion that has taken place, may I take the opportunity, in dealing with this Amendment, to voice a general apprehension about the whole idea of making great lists of birds that are to be protected. In an earlier debate on the protection of birds I expressed myself somewhat in this way: that what we want to do is to protect our wild birds, a great wealth, a great amenity of this country. It seems to me that the way to do that is to protect all birds except those that are game birds, or quasi-game birds, which can be used for food—not to make a list of the birds that are protected, but to protect all birds and put the others that may be destroyed in the different localities on what 807 may be described as a "black list" of noxious birds, birds that are doing harm in one way or another. I should hardly be inclined to place the responsibility for making the choice in the different areas upon the relative Secretaries of State. I should seek to put that power in the hands of the local authorities who can judge as to the position in their own areas. As I say, that is a general criticism of the whole atmosphere of this Bill, and I invite word from the noble Viscount as to the validity of that criticism, because I am not speaking entirely "without the book." For a number of years in another place I promoted a Bill exactly on the lines that I have indicated, protecting all birds except the game birds, the quasi-game birds and those that were doing harm; and that, as I understood it—indeed, I had an assurance about it—was the method desired by the Scottish Society for the Protection of Wild Birds. If their attitude has changed, I certainly have not been apprised of it, and yet this Bill legislates for Scotland as well as for Southern Britain. I voice these apprehensions hoping to have some indication of the reasons that have caused the change, so far as Scotland particularly is concerned.

§ LORD HURCOMB
May I say that, while I am in agreement with the general principles which the noble Lord who has just spoken has in mind, it would be deplored by all those bodies interested in the protection of birds if we went back to a system of separate county ordinance. I should like to express my appreciation of the extent to which the Amendment next on the Order Paper meets the point which I and others urged strongly on the Second Reading: that existing protection should not be withdrawn. The eggs of any birds not specified in the Second Schedule and thereby outlawed will, if they are now protected, have that protection continued by the Bill. That is something. Nevertheless, I hope that before Parliament finally deals with this matter, something further will be done, and that, in addition to the new provisions relating to the rarer species specified in the First Schedule, a real step forward will be taken. I agree that our object should be not merely to protect those birds which are exceptionally beautiful, or are occasional migrants from other countries, or are not yet excessively 808 rare: we want an abundant and varied bird life of all sorts to adorn our countryside.
When it is suggested that we cannot, or ought not to try to, alter long-established practice, I feel that we ought to bear in mind that circumstances have changed during the last half century. There are many more human beings in this country, and far more built-up areas than there then were, and bird life is exposed to many new risks—such as the fast-moving motor vehicle, changes in agriculture, the chemical warfare waged in one form or another upon nature, and other changes of that kind. The need for protection is correspondingly greater, and as we cannot easily alter the habits of the birds, surely the thing to do is to adjust our own. I feel that we have reached the stage when human beings, whatever their age or motive, ought not to molest those birds which are not definitely prescribed, or I might venture to say proscribed, in some order by a Secretary of State. But meanwhile I think the Amendments proposed by the noble Viscount in charge of the Bill go a long way to ensure that we do not slip back; and on other stages, the Bill is capable of yet further adjustments which may enable us to move forward and say that only the eggs of those birds which are outlawed in the Second Schedule, or may be for this particular purpose specified by a Secretary of State, shall be liable to be taken.

§ VISCOUNT TEMPLEWOOD
I am obliged to Lord Hurcomb for his intervention. It seems to me that his great knowledge carries much weight. As to Lord Mathers'point, I would remind him that this Bill is the result of a very careful inquiry by two expert Advisory Committees, one of which was a Scottish Committee upon which was represented a great body of Scottish expert opinion. I think we should all have liked a simpler Bill than this one—most of all myself, in charge of it. But when we have gone into the question we have found that there is a danger of over-simplifying the Bill. One must draw distinctions between various categories of birds: that is really the basis of the Bill.
The noble Viscount, Lord Elibank raised the point about giving so much power to the two Secretaries of State. It 809 is a choice between giving powers to someone or attempting to put a very complicated list of birds into an Act of Parliament. I have tried to make these lists and I admit that I have failed. I believe the only way is to leave it to the two Secretaries of State, with their Advisory Committees. I do not think it is a thing that one can do here and now. The birds in the list will vary from time to time—

VISCOUNT ELIBANK
We did it in the Plumage Bill.

§ VISCOUNT TEMPLEWOOD
I know, but the question of plumage was a single issue. Here we are dealing with about 250 different species of British birds, and I think there must be elasticity in dealing with them. It may be that at one time it is necessary to put a bird into a particular Schedule, whereas at another time or in another place it is necessary to take it out. That being so, I do not believe it can be dealt with in statutory form, and I think the better plan is to leave it to the two Secretaries of State.

§ EARL JOWITT
I ask leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ 4.55 p.m.

§ VISCOUNT TEMPLEWOOD moved, in subsection (2) to omit the proviso. The noble Viscount said: This is an Amendment to leave out the two lines at the bottom of the first page—namely, Provided that an order shall not be made under this subsection with respect to part only of any administrative area. This is the point upon which Lord Jowitt has already spoken; it is to make it possible to deal with smaller areas. I beg to move.

§ Amendment moved— Page 1, line 25, leave out lines 25 and 26.—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
This is an Amendment that we have already discussed up to a point—namely, the Amendment under which I safeguard all the existing protection. As we have already dealt with it I do not think I need elaborate it. I therefore beg to move.

810

§ Amendment moved—

§ Page 1, line 26, at end insert— (3) So much of any order made by the Secretary of Stale under the Wild Birds Protection Acts, 1880 to 1939, and in force immediately before the commencement of this Act as prohibits the taking or destruction in any specified area of the eggs of any specified kind of wild birds shall be deemed to be an order made under the last foregoing subsection: Provided that a person shall not by virtue of any such order be guilty of an offence by reason of the taking or destruction of an egg of a wild bird included in the Second Schedule to this Act."—(Viscount Templewood.)

§ EARL JOWITT
All I will say is this: it has been brought to my notice that in another place a Bill is being introduced which puts the matter the other way round—all birds will have, and are to continue to have, protection, but it will be open to the Secretary of State to remove the protection from them. I should like the noble Viscount to bear that in mind. We do not want to seal our minds absolutely between now and the next stage, and we should consider whether the clause in that Bill, which is easily referred to, affords perhaps even a better way than this of achieving our object. If he will look at it I shall be much obliged.

§ VISCOUNT TEMPLEWOOD
I shall certainly look at it. I think one of the advantages of having a Bill on parallel lines in another place is that eventually we can pick out the best in each of them and embody it in the final measure.

§ On Question, Amendment agreed to.

§ 4.58 p.m.

§ EARL JOWITT moved, in subsection (3) (a) to leave out "the person is an authorised person and." The noble and learned Earl said: We are getting on very well and quite amicably, but this is a rather more controversial Amendment and I am afraid I must take a few moments to put it before the Committee. In discussing this Amendment the Committee may also like to bear in mind Amendment No. 10 on the Marshalled list, which deals with the taking of the nest, because the arguments in the two cases are very much the same. May I start off with a statement which I believe to be correct—many of your Lordships will know it—about the law of trespass? I believe I am right in saying that trespass as such is not a criminal offence at all, subject to certain exceptions which I will 811 mention presently—I am, of course, talking about trespassing on another person's property, land and so on. That trespass is a civil wrong. The trespasser is responsible for the damage he does, which is generally very slight; and if he threatens to repeat his trespass an injunction can, of course, be obtained.

§ As an illustration, may I tell the Committee of this case? There was a well known case where some small boys played a game of football on a field of grass. The owner of the field came and ordered them off, but they did not go. Thereupon, he proceeded to take them before the magistrates, but he failed in his prosecution. He had the right, no doubt, to use such force as was necessary to throw them out. The mere fact, however, that the boys were on the field and not doing any real damage—a certain amount of damage, I suppose, was done, but not real or substantial damage—did not create a criminal offence. That has always been the broad general principle. Sir Walter Scott always used to refer to the type of notice which bears the words "Trespassers will be prosecuted" as "a wooden lie." Trespassers cannot be prosecuted, prosecution meaning the taking of criminal proceedings against them. Trespassers, as a broad general rule, commit only a civil wrong. The law has dealt with this matter. It was the subject of great Parliamentary discussion and no little Parliamentary heat in the old days.

§ The first and most important exception, however, is "trespass in pursuit of game." Trespass in pursuit of game has, for a long time, been a criminal offence—I remember Statutes going back to 1830, and probably there are Statutes going back even further. If you satisfy a court that a man has been in pursuit of game, that is sufficient. Whether he has got game or not does not matter; the fact that he was trespassing in pursuit of game made it a criminal offence. Another exception which is enshrined in an Act of 1914 is where a trespasser does serious and malicious damage. In these circumstances trespass comes within the purview of the criminal law, and where a person does serious and malicious damage he can be prosecuted for trespass. Then there are various other Statutes making trespass an offence. Trespassing on the railway, for instance, is, 812 by the Railway Acts, a criminal offence. That is the broad picture which I want to present and I think I have done it sufficiently to remind your Lordships of the fact that trespass, as such, is not a criminal offence. And I think we should be very slow indeed to make trespass a criminal offence.

§ What we are, in effect, doing here, though in rather a roundabout way, is to make trespass in pursuit of magpies a criminal offence. About that, I think we should hesitate. The way the clause works is this. I am considering the killing of birds for the moment; we will look at the question of the nests presently. We start off with a broad, general, sweeping prohibition and we make it an offence under Clause 1 (1) (a) to kill, injure or take any wild bird. To that broad general proposition we then begin to engraft certain exceptions. The exception which I am now considering is that contained in paragraph (a) at line 3 on page 2 of the Bill. It is stated that this clause shall not apply (a) where the person is an authorised person and the bird is included in the Second Schedule to this Act; … The second Schedule to the Act is a Rogues' Gallery of Birds. For the sake of argument, the magpie is as good an illustration as I want. The broad general proposition does not apply where a person is an authorised person and the bird a magpie.

§ What is an authorised person? That is defined in the definition clause. It includes—I do not wish to read the whole clause—any person shown to have been authorised by the owner or occupier, of any land … For the moment let us examine the structure of this thing. Subsection (4) states that: Paragraph (b) of subsection (1) of this section shall not apply where the person is an authorised person and the bird is included in the Second Schedule to this Act. I will take one arbitrary case, the redshank, which is included in the Third Schedule; I could take as an example a bird mentioned in Part II of the First Schedule, but the redshank will do. See, if you will, what is the distinction. If a man armed with a gun comes on to my ground, his intention being to shoot a magpie,he—I am assuming, of course, that he is a trespasser and not authorised—commits a criminal offence in so 813 doing or in attempting so to do. But if he comes on my land armed with a gun intending to shoot a redshank, he commits no criminal offence, because the qualification about being an authorised person applies only to (a) and does not apply to (b). If I may say so, with the greatest respect, that seems to me a most astounding result. I could have understood it had it been the other way round, but I cannot see what sense there is in saying that if you are going to escape the broad general proposition in the case of magpies you must show that you were authorised (for the moment, I am talking of persons authorised by the owner or occupier of the land) but if it is a redshank or any of the birds mentioned in the Third Schedule, other than teal or duck—there are special Statutes dealing with those—the question of authority is nothing to the point.

§ Before I leave this matter, by way of illustration may I consider the same point in regard to the taking of a nest. That arises in connection with the passage beginning at line 16 on page 2 which I have quoted. Clause 1 (1) (b) relates to taking a nest. This paragraph may or not be amended—I hope it will be. It is stated at line 16, page 2, that … this section shall not apply where the person is an authorised person and the bird is included in the Second Schedule to this Act. There you get the same sort of complication, the authority being linked up with the inclusion of the bird in the Second Schedule. Frankly, I do not understand that at all. Behind this there is an important point. I want your Lordships to understand that there is nothing in the Bill which extends by one iota the right of people to go on to other people's land. This is not a Bill to confer on any one the right to go and kill magpies or anything of that sort. But when you are going to bring these matters within the reach of the criminal law, I beg you to stop and consider what you are doing. May I take the case of two boys? One, we will say, is the squire's son, who presumably has the authority of his father to go out and do what he likes on his father's land. He sees a magpie's nest in a tree and pulls it down, or shoots the magpie. That is all right; he is an authorised person. But a village boy whose father has not got any land and who wanders into a wood and does these 814 things, having no right to do so, any more than he has to-day, will find himself guilty of a criminal offence. This seems to me a most dangerous extension of the law of trespass. When I think of the battle in the past about making a criminal offence of trespass in pursuit of game, when I think that in effect what you are doing is to make it a criminal offence to go in pursuit of magpies, I wonder whether it is wise.

§ I am one of those most anxious to get the Bill through: I am not trying to be obstructive at all. But I am perfectly certain that insistence on having this clause in the Bill will mean that the Bill will not get that easy passage which it otherwise would have when it goes to another place. I am not going to ask your Lordships to divide on this Amendment now. I am moving it to see whether the noble Viscount in charge of the Bill cannot do something to get out of this difficulty, which I believe is a serious one. I do not want it to be thought that I am in any way in favour of allowing people to go on to someone else's land to shoot magpies, or for any other purpose. I do not want the impression to get about that by passing this we are extending that right. It is not so. Nothing in the Bill extends the right. But I would ask your Lordships to say that if it be right to kill a magpie, then let the village boy or the squire's son kill it, subject, of course, to the right of damages for trespass. If it be wrong, prohibit them both from doing so; but I beg you not to make the test of a breach of the criminal law whether the boy who does the deed is the one or the other. If we do that, then I am afraid we shall incur for this wholly admirable Bill a great deal of opposition which I think we can avoid by a little wisdom. I beg to move.

§ Amendment moved— Page 2, line 17, leave out ("person is an authorised person and").—(Earl Jowitt.)

LORD GIFFORD
May I ask the noble and learned Earl whether, if this Amendment is inserted, it will not provide a perfect alibi for the poacher? If a poacher is found with a gun and a dead pheasant, he could say he was shooting at a magpie or a pigeon or other noxious bird and happened to bring down the pheasant.

815

§ EARL JOWITT
I do not think that is a very good alibi. Of course, it is for the magistrates to decide. That is the sort of defence which is always put up to-day and I need hardly say that the magistrate generally decides it is not the truth.

§ 5.13 p.m.

§ VISCOUNT TEMPLEWOOD
This is really the most difficult question in the whole Bill. It is a question upon which there is a great deal to be said on both sides. What we want to do is to avoid indiscriminate shooting and the disturbance of the country, and it has been thought that, in drawing attention to the birds in the Second Schedule that may be killed, there was a real risk that that would be an incitement to Tom, Dick and Harry to wander about the country killing these birds, and would be a pretext for nefarious egg collectors to say they were out shooting magpies when they were trying to get marsh harrier's eggs. That risk very much impressed the advisory committees and they attach considerable importance to this provision. It is not the result of a plot between landowners who wish to keep people off their land; it is the result of bodies like the Nature Conservancy and the various bird societies who are nervous of their sanctuaries being disturbed. There is a certain comparison to be made, though not a very exact one, between what is proposed and what is already in force for rabbits and hares under the Ground Game Act. That is the case for the provision.
On the other hand, there are the objections that have been so clearly raised by the noble and learned Earl, Lord Jowitt. There is the anomaly that it would not be a criminal offence to shoot a redshank, whereas it would be to shoot a magpie. One possible way to deal with that would be to make it compulsory for everybody to have the licence of an authorised person to shoot anything, but difficulty would arise with shore shooting: people who are quite legitimately shooting birds on the shore, and in places like that, would have to have permits, and I do not think that is practical politics. The second main objection, which in my view is much the stronger one, is that here we are dealing with inflammable material that has become more inflammable over a long course of time. As a layman, I am 816 nervous of becoming involved in controversies over the laws of trespass and in turning civil offences into criminal offences. On that account, though I admit that I do not see the right solution to the problem of preventing the unnecessary disturbance of sanctuaries and at the same time of avoiding changing what is a civil offence into a criminal offence, I am prepared to look at this matter again.
I am most anxious not only that we should get the Bill through without undue trouble, but that when we do get it through we shall have raised no Party issue in our discussions, and, if possible, we shall have an agreed measure. It may be that in looking at it again, we may find it possible to put in a strong declaratory clause stating clearly that nothing in the Bill alters the present law of trespass. I am aware of the objection that is always made to declamatory clauses—namely, the difficulty of applying them in courts of law; but, none the less, I think a clause of that kind would give a lead to magistrates' courts in dealing with these questions. At any rate, I am prepared to say to-day that I will look into this question again with the desire to find a way out. I do not see one at the moment but I shall do my best to find one.

§ LORD MATHERS
I am sure your Lordships will be pleased with the kindly way in which the noble Viscount has received this Amendment. I rise only to say that in the further consideration he gives the matter, I hope the noble Viscount will keep in mind that there is no trespass law as such in Scotland. Damage must be done and trespass per se is not an offence.

§ VISCOUNT TEMPLEWOOD
I am very conscious of the difference between English and Scottish law and also of the great risk in an Englishman's legislating for Scotland. But I can assure the noble Lord that I will see that the Scottish side of the question is not ignored.

§ EARL JOWITT
I am obliged to the noble Viscount for the way in which he has received this matter. I should like to add this, which I thought of afterwards. The noble Lord, Lord Gifford, asked me a question. He will realise that if the man says that he was going out for a redshank, then he will be all right; and it is only if he is going out for a magpie that he commits a criminal offence. I should also 817 like to point out to the noble Lord, Lord Lloyd, that on the Second Reading he was anxious that the police should not be concerned by making these offences committed by young boys criminal. Does he realise that if a boy, not being authorised, strays into a wood to take a magpie's nest, or the nest of a jackdaw if he sees the jackdaw coming out of a hole in the tree, he will be committing a criminal offence, just because he is not an authorised person? It seems to me that when the noble Viscount gives the matter further consideration he should have that aspect of it in mind also. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ THE EARL OF HADDINGTON moved, in subsection (3), to add to proviso (i): "Christmas Day." The noble Earl said: This Amendment seeks simply to extend the prohibition in Scotland for one more day. It is not a controversial Amendment. It has the blessing of the Scottish Wild Birds' Protection Society, and will, I think, be accepted throughout Scotland, both by the shooters and the non-shooters. I beg to move.

§ Amendment moved— Page 2, line 10, at end insert the said words.—(The Earl of Haddington.)

§ VISCOUNT TEMPLEWOOD
I am quite willing to accept this Amendment.

THE EARL OF HADDINGTON
I am grateful to the noble Viscount.

§ On Question, Amendment agreed to.

§ LORD GIFFORD had given notice of two Amendments in subsection (5), the first being in paragraph (a) to leave out "and woodcock." The noble Lord said: With your Lordships' permission, I should like to discuss this and the next Amendment together. As the Bill is drafted, the open season for a woodcock begins on October 1, the open season for snipe in Scotland on August 12, and the open season for snipe in England on September 1. Occasionally, when one is shooting grouse on moors in Angusta snipe or woodcock will get up, although it is a rare event. It is felt that little harm would be done if it were made possible for the snipe, both in England and in Scotland, to be shot from August 11, and for the same thing to apply to the woodcock. My desire is to make the 818 open season, both for the woodcock and the snipe, begin on August 12. I beg to move.

§ Amendment moved— Page 2, line 21, leave out ("and woodcock").—(Lord Gifford.)

THE EARL OF ILCHESTER
I think the real point of this Amendment is that snipe and woodcock reach Scotland rather earlier in the year. Therefore, I do not think there is any great harm in allowing a different date. When we were discussing this matter in the Advisory Committee the idea was that there should be a different date for Scotland from that in England, which we have had in several cases. Personally, I do not see any objection to it. Whether that would meet the point of the noble Lord, Lord Gifford, I do not know.

LORD GIFFORD
The noble Earl is talking about woodcock now?

THE EARL OF ILCHESTER
Yes, and snipe. They leave Scotland fairly early, and a good many of them have gone if the date is September 30.

LORD GIFFORD
As I understand it, what the noble Earl has in mind is to put the woodcock with the snipe in Clause 1 (5) (b), and to make the woodcock date the same as that for same in Scotland.

§ VISCOUNT TEMPLEWOOD
I do not suggest that I feel strongly upon this point, but I should prefer to leave the Bill as it is. What is happening is that there are certainly more woodcock breeding in the country every year, and that is a good thing. I should do everything I could to encourage them. I feel that making the close time for the woodcock longer is a good thing. Whilst I do not think this change would have any disastrous consequences on the Bill. I should prefer to leave it as it is.

LORD GIFFORD
Would the noble Viscount consider the compromise of allowing the woodcock to be shot in Scotland from August 12, the same as the snipe?

§ VISCOUNT TEMPLEWOOD
I promise to look into it, but I am afraid it will be rather unsympathetically.

VISCOUNT ELIBANK
I agree with the noble Viscount, Lord Templewood, on this matter.

819

LORD TERRINGTON
I should like strongly to associate myself with the noble Viscount, Lord Templewood. I feel that this change would be a most retrograde step.

LORD GIFFORD
I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 5.28 p.m.

§ VISCOUNT TEMPLEWOOD moved, in subsection (5) to omit paragraph (c). The noble Viscount said: This Amendment deals with the important question of the date for shooting ducks and geese in February, and it is put down largely as a result of the intervention of the noble Lord, Lord Hurcomb, on the Second Reading, when he pointed out that, as the Bill is drafted, we should leave the state of affairs in some districts worse than it is at present. The object of this Amendment is to keep the dates as they are, and in no cases to allow the dates to be worse, from the point of view of protection, but to leave it to the two Secretaries of State to go through these dates and eventually decide upon the final date. The Amendment affects only the coastal districts, where it is claimed, rightly or wrongly, that the early days of February are very much needed for wildfowlers. Be that as it may, I think the wise course is to take the line that I venture to suggest in this Amendment, to safeguard all the existing protection, and leave it to the two Secretaries of State to make the final decision as to what the date should be. I beg to move.

§ Amendment moved— Page 2, line 27, leave out paragraph (c).—(Viscount Templewood.)

THE CHAIRMAN OF COMMITTEES (THE EARL OF DROGHEDA)
I might point out that if this Amendment is passed, Amendment number 14 cannot arise, because the paragraph will have gone. Therefore, perhaps the noble Lord, Lord Strathcona, would consider speaking on this Amendment also.

§ LORD STRATHCONA AND MOUNT ROYAL
I did not intend to speak on this Amendment, but was going to ask the noble Viscount whether he would consider afresh the position of the wild-fowlers. They have given up eighteen days at one end of the season, without protest, and it is now being suggested that they should give up eighteen days 820 at the other end. Before agreeing to this Amendment, I wonder whether we could have some assurance from the noble Viscount that, at the next stage of the Bill, their case will be considered afresh.

§ VISCOUNT TEMPLEWOOD
I do not think I could possibly give that undertaking. These dates were agreed to by the representative of the Wildfowlers' Association upon the Advisory Committee. They were the result, I understand, of a compromise, and I should be reluctant to give the impression that I wished to see these dates made worse, rather than better, in the future. Therefore, I could not give that undertaking.

§ LORD STRATHCONA AND MOUNT ROYAL
Of course, I must accept the noble Viscount's argument.

THE EARL OF ILCHESTER
I think I should support the noble Lord, because this was a definite compromise with the wildfowlers in our Advisory Committee. We had a good deal of talk about this, and, as my noble friend probably knows, at the present time any county can apply to shoot below high-water mark, I think it is (I am not sure whether it is high or low-water mark) but only up to February 21. The wildfowlers came to us and said, as the noble Lord, Lord Strathcona, has mentioned, that they had given up a lot the other way, and we thought it was a compromise. The compromise was that, under the Bill which we suggested (and it was in the present Bill, though it has been so changed now that I do not quite know where it is) all maritime counties should have that privilege below low-water mark. That has now been cut out, and I do not quite know where we are.

§ LORD HURCOMB
My name is added to this Amendment, so may I say one or two words in explanation. I should like to acknowledge the extent to which the Amendment later on the Order Paper meets the point which arose earlier: that no existing protections should be withdrawn. As regards the dates in paragraph (c), it will no doubt be an advantage to many birds, and particularly wading birds, that the close season should be extended to August 31, although, as the noble Lord knows, the migration of waders through this country tends to be at its height not in August but in the first 821 fortnight of September. But as regards most wild ducks, and all wild geese, an extension in August means nothing at all, whereas any curtailment of the close season in February means a great deal. The breeding stock is then already largely paired, and though the casualties inflicted may not be very numerous in those concluding days, they have a disproportionate effect on the maintenance of the breeding population. It is the maintenance of the breeding population in this matter which is really the point of importance.
I do not think that, on scientific grounds or on grounds of conservation, there could be any doubt that to extend the open season through the first three weeks of February would be a retrograde step. At present, the onus is on the county council which wants an extension to apply for it. My point in putting down the Amendment was to draw attention to the fact that this automatic extension by three weeks was a step in the wrong direction. I am speaking only from the point of view of conservation. That is the view of the Nature Conservancy of the Severn Wildfowl Trust and of other bodies with exceptional knowledge, and is based on the fact that many species of wildfowl have greatly declined in numbers during the last fifty years.
That statement is based not on a mere apprehension of what may happen, but on the knowledge of what, in fact, is happening, and has happened in other parts of the world. In America, during the last fifty years, species after species has become extinct, or has diminished to the point of danger. In the United States in recent years nearly all shore birds have been removed from the list of game birds and have been given protection, and their numbers have shown a gratifying increase. Nevertheless, some have become rare and some stand in danger of extinction. For example, the upland plover is now protected both in the United States and Canada, but it winters in South America and is shot in its winter quarters far down into the Argentine. As an American authority who was writing on this subject said: The birds have to run an endless gauntlet of gunners. It is no wonder that even in that vast Continent the species which existed in almost countless numbers not very long ago now stand in danger of extinction. 822 I submit that the interests of wildfowling and of conservation in this matter are identical, and I think that the great majority of wildfowlers themselves would wish to take an enlightened view.
Any proposals for extending the close season, and maintaining the close season where it exists, is not in any sense hostile to wildfowlers but is, in fact, in their ultimate interest. I feel, therefore, that the matter merits close consideration, and I think it unfortunate that within the last year or so the Home Secretary has made an order prolonging the open season in the county of Gloucestershire, while the negotiations between the noble Earl, Lord Ilchester, and his Committee were still going on. It was made on the assumption that any extension contemplated would go only to February 15. I believe it was suggested to the county authorities that they might come into line, having hitherto been quite content with February 1, and prolong the open season to the 15th. That that should have happened in a county like Gloucestershire, where the efforts to maintain the wildfowl have received financial support and created universal interest throughout the world, seems to me rather unfortunate. I am sure that the noble Lord, Lord Lloyd, will see that during the interval before this Bill takes effect no further extensions of time are granted, on any grounds of application whatever. I have put down my name to this Amendment to draw attention to it, and not to press it to a Division. I am quite content to be guided by the noble Viscount in charge of the Bill; but it would seem to me in the best interests of the wildfowlers, as well as in the interests of conservation, that this date should be switched back to where it was—February 1—the date which Parliament itself not long ago declared an appropriate one. That date should stand, and there should be very special reasons for it to be advanced in any county where it is not already in force.

THE JOINT PARLIAMENTARY SECRETARY OF STATE FOR THE HOME DEPARTMENT (LORD LLOYD)
The noble Lord asked me to give him an undertaking, but he will realise that that is not possible at the moment. The noble Lord will not expect an explicit undertaking to-day that there should be no extensions, but we will consider it and 823 see whether or not that will be possible. Further than that I cannot go to-day.

THE EARL OF ILCHESTER
May I express my surprise at Lord Hurcomb's remarks about Gloucestershire? Personally, I have never heard a single word of the matter. I suppose it came on after it was handed over to the noble Viscount, Lord Templewood. It never came up to our Advisory Committee. I think it ought to have come to us. However, that is a matter for the Home Secretary.

§ LORD HURCOMB
I did not raise this matter as a complaint, but the order was made on January 21 of this year. As regards what the noble Lord, Lord Lloyd, said, I was, of course, not expecting an undertaking; but he has shown himself to he so understanding and sympathetic to the points which have been raised by me during the course of this debate that I am quite content with his assurance that he will look into it.

THE EARL OF ILCHESTER
I should also like to say that our Advisory Committee were all strongly opposed to any date later than February 1. But I thought it was only fair to the Wildfowl Committee that I should mention the exact position.

§ LORD STRATHCONA AND MOUNT ROYAL
May I say that I accept what the noble Viscount, Lord Templewood, has said? But since, by accepting what he has said, I lose my next Amendment, may I press the noble Viscount, between now and the Report stage, to give the most favourable reflection he can to the case of the human wildfowlers and the ornithological waders?

§ VISCOUNT TEMPLEWOOD
I certainly will, but I am afraid that I could not on any account agree to including waders, which is a very vague expression.

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
This Amendment follows the explanation I gave just now which safeguards the protection in the areas where it is better than February 21. I beg to move.

§ Amendment moved— Page 2, line 35, after ("that") insert ("(i)").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

824

§ VISCOUNT TEMPLEWOOD
The same remarks apply to this Amendment. I beg to move.

§ Amendment moved— Page 2, line 37, leave out from beginning to second ("any") and insert ("the close season for").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
The same remarks again apply to this Amendment. I beg to move.

§ Amendment moved—

§ Page 2, line 38, at end insert— ("(ii) so much of any order made by the Secretary of State under the Wild Birds Protection Acts, 1880 to 1939, and in force immediately before the commencement of this Act as provides that the time during which the killing and taking of wild duck and wild geese is prohibited in any specified area contiguous to the low-water mark of ordinary tides shall begin with some date later than the first day of February but not later than the twenty-first day of February shall, notwithstanding the repeal by this Act of the said Acts of 1880 to 1939, continue in force with respect to that area so far as it relates to any bird included in Part II of the First Schedule or in the Third Schedule to this Act, but may be revoked by an order made by the Secretary of State under paragraph (i) of this proviso.")—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ Clause 1, as amended, agreed to.

§ Clause 2:

§ Power to establish bird sanctuaries

§ 2.—(1) With a view to the creation of bird sanctuaries, the Secretary of State may by order make provision with respect to any area specified in the order providing, subject to the provisions of this Act, for all or any of the following matters, that is to say—

(a) that any person who, within that area, at any time wilfully kills, injures or takes, or attempts to kill injure or take, any wild bird whatsoever other than a bird included in the Second Schedule to this Act shall be guilty of an offence against this Act;
(b) that any person who, within that area, wilfully takes or destroys an egg of any wild bird whatsoever other than a bird included in the Second Schedule to this Act shall be guilty of an offence against this Act;
(c) that where any offence against this Act, or any such offence against this Act as may be specified in the order, is committed within that area, the offender shall be liable to a special penalty.

§ (2) Before making an order under this section with respect to any area, the Secretary of State shall consult with any person who owns or occupies any land included in that area and with the council of any administrative area within which that area or any part thereof is situated.

825

§ 5.46p.m.

§ EARL JOWITT moved, in subsection (1) to insert as a new paragraph (a): (a) for prohibiting the entry of any person during the nesting season into the sanctuary save under such conditions as may be specified in the order;

§ The noble and learned Earl said: This is a matter of some little importance. The noble Viscount, Lord Templewood, threw out a hint on the Second Reading of his Bill that the point was already covered in the National Parks Act. Now, if it is covered in the National Parks Act I do not want to have it twice. I am talking, therefore, on the assumption that it is not entirely covered by the National Parks Act. I attach a great deal of practical importance to this Amendment. After all, what have we done? We have done a very useful bit of work but I am afraid it often happens that a boy will take the eggs without knowing what eggs they are: he will just see them and take them. In the same way a sportsman may be about with a gun and shoot a bird without knowing what it is.

§ Here is a practical and effective step to encourage the breeding of some of these birds. Why not have small sanctuaries—with the consent of the owner and everyone concerned, and only with that consent—where these birds could breed? If you cannot get the consent of the owner, you cannot do it. The Home Secretary ought to have power to say, "This is a sanctuary," and if he says it is a sanctuary then no one save some person with his authority should go into it in the nesting season. I believe that to be a matter of great importance. I have known odd little woods, quite small, no more than half an acre in extent, where warblers, and so on, have nested. The most effective way to get these birds to bring up their young and breed is to prevent people from going into those sanctuaries. I do not believe there is any other way in which you could prevent people from going in.

§ Further, I should like to confer upon the Home Secretary a power in this matter. I make it quite plain in a later Amendment that it is a power which should be exercised only with the consent of all the people concerned. This power would be to prevent anybody from going into these places. Of course, in fact you would have to have someone authorised to go in and look after the place, and 826 people would be allowed to go in only with him. If small boys and collectors were allowed to go about in these places except in the company of this person they might do a great deal of harm. Therefore for the nesting season, and only for that time, nobody should be allowed in under the terms of this licence.

§ That is the subject of the first Amendment. If I am told that the power already exists, then there is no point in having it re-enacted; but I am not sure that the power exists. I know it has been said that in some areas the owners are not known. Well that is just too bad, and in that event you cannot do what I am suggesting. In the vast majority of cases, however, the owner is known, and, provided you get his consent the Home Secretary ought to be able to say "I am not going to have you in here in the nesting season." I also believe that the nesting season should be defined by order of the Home Secretary. Here I am myself wanting to make trespassing a criminal offence: if anyone goes into these places without the order of the Home Secretary it should be a criminal offence. This practical step would do much to protect some of our birds and I think the noble Viscount will be very sympathetic to me, in this matter. He will tell me whether everything he wants is already in the National Parks Act, and, if it is not, I hope that he will accept this Amendment. I beg to move.

§ Amendment moved— Page 2, after line 43,insert the said paragraph.—(Earl Jowitt.)

§ VISCOUNT TEMPLEWOOD
I have looked up the National Parks and Access to the Countryside Act and I am inclined to think that all the necessary powers are included in it. I am told that the powers under the National Parks Act are the powers that are suitable for keeping people out of an area. It is said wardens and a staff to keep people out would be needed, and it would be rather a big affair. That being so, it is better that it should be dealt with under the National Parks Act, in which there are the necessary provisions, rather than under this clause, which contemplates nothing more than small, voluntary sanctuaries. At the same time, I attach a great deal of importance to what the noble and learned Earl, Lord Jowitt, says upon a subject of this kind, and I am prepared to accept 827 the Amendment; but I am sure he will agree with me that if, upon further inquiry. I find that it really is superfluous, we can then cut it out at the Report stage.

VISCOUNT ELIBANK
I think this is a particularly important point, having regard to what was said by the noble Lord, Lord Mathers, just now, that the laws of trespass in England and in Scotland are different, and therefore what might apply to a prohibition in the case of England might not apply in Scotland. Therefore I hope that, when the noble Viscount looks into this point, he will bear that in mind. I am wholly with the noble and learned Earl, Lord Jowitt, in considering it as being one of the most important features of this Bill.

THE EARL OF ILCHESTER
I should like strongly to support the noble and learned Earl in this Amendment. This is a point I have been urging throughout our work on the Bill: that there should be power to stop a man from entering and disturbing the nesting in a ternery, for instance: it creates the most appalling chaos, when anybody comes in, and you have no right to get him out unless he has eggs on him. Naturally, before you catch him he has thrown them away. I am wondering whether the point is covered by the National Parks Act, and I shall be interested to know what my noble friend finds out about this. My view is that a national park, a big park, naturally is covered; and equally so is anything arranged by the Nature Conservancy; but does a small county council sanctuary, where there is no park and no nature reserve, come under it? I am doubtful. That is a point I should like carefully looked into.

§ LORD SILKIN
Since the National Parks and Access to the Countryside Act has been referred to, may I, and as one who played some part in getting it on the Statute Book, say that in my opinion that Act does not cover this particular case, and that the provision which the noble and learned Earl, Lord Jowitt, is seeking to introduce into this Bill is rather wider, for the reasons given, I think, by the noble Earl, who has just spoken. In the National Parks Act certain specific areas are dealt with, but I take it that this provision is intended to be rather wider. There is one point that 828 the noble Viscount may look at when he is examining the matter, and that is the question of machinery. The National Parks Act concerns some Minister other than the Secretary of State, and it may be that there would be two similar sanctuaries, one governed by one Minister and one governed by another. That may need a little straightening out. But I am quite sure that the area covered by the National Parks Act is not identical with the area covered by the proposed Amendment.

§ On Question, Amendment agreed to.

§ EARL JOWITT
This Amendment is to make it plain that this can be done only with the consent of the owner. I beg to move.

§ Amendment moved— Page 2, line 44, after ("who") insert ("without authority enters that area in the nesting season or who").—Earl Jowitt.)

§ On Question, Amendment agreed to.

§ 5.57 p.m.

§ VISCOUNT TEMPLEWOOD had given notice of several Amendments to subsection (1), the first of which was, in paragraph (a) to omit "whatsoever other than a bird included in the Second Schedule to this Act." The noble Viscount said: This is a somewhat new proposal with reference to sanctuaries. When I spoke on the Second Reading, I had been informed that there was no need to have in the Bill a clause about sanctuaries, because that matter was covered by the National Parks Act. Since then, I have made further inquiry and I find that that information is not entirely accurate. The effect of having no clause in this Bill would be to remove the protection from a number of existing sanctuaries that are protected under Wild Bird Protection Acts which are to be repealed under this Bill. It is, therefore, necessary to deal with the matter here. I deal with it with the fullest possible desire, not only to save existing sanctuaries but to increase their numbers.

§ As the Bill was originally drafted, the criticism was made that we might be taking property and interfering with various interests without the power to give any compensation. I was anxious to avoid questions of compensation in this Bill, because I know how often they lead to complications. We have therefore been considering how best to deal with 829 the problem. I have been in consultation particularly with the Chairman of the Nature Conservancy, and you will see from this Amendment how we propose to deal with the matter. We protect the existing sanctuaries; we encourage new sanctuaries provided they are made voluntarily; and there is a provision that no interest—where there is ownership or rights of various kinds, shooting rights, for instance—should be interfered with at all. I think that, with that proviso, the proposal is watertight. As I say, it encourages the small sanctuaries, it is based upon voluntary agreements, and it gives the undertaking that no existing interests will be interfered with. I venture to suggest that that is a better way of dealing with it than the way proposed by the noble and learned Earl, Lord Jowitt, in Amendment No. 23, which would make it necessary to have the prior consent of everybody concerned. I am told, particularly with regard to some of these sanctuaries, that, even if they are not foreshore or something rather like it, if is very difficult to find out who are the owners and who have rights. That being so, it is better to state clearly that no interest should be compromised rather than to have to search areas, perhaps for several years, before we can find exactly who is the particular owner in a stretch of vague, uncertain country. Unless there is this provision, it may be impossible to start some of these voluntary sanctuaries. With that explanation, I hope the Committee will accept my new proposals.

LORD TERRINGTON
Which Amendment is the noble Viscount speaking to?

§ VISCOUNT TEMPLEWOOD
I am speaking to all three Amendments.

§ Amendment moved— Page 3, line 1, leave out from ("bird") to ("shall") in line 2.—(Viscount Templewood.)

§ EARL JOWITT
I should like to reply, of course, by a Roland for an Oliver—if the noble Viscount is good enough to accept my Amendment, I will accept his. I should like to look at it again. I am doubtful in regard to "an authorised person" coming in here.

§ VISCOUNT TEMPLEWOOD
What I said earlier will cover the point here.

§ EARL JOWITT
I do not mind his being a person mentioned in the order of 830 the Home Secretary, but I do not want "authorised person" to mean anybody who is authorised by the owner of the land; because if the land-owner consents and the Home Secretary gives his approval to the making of this ground a sanctuary, then a sanctuary it must be, and the persons who are authorised must be only such persons as are authorised by the Home Secretary. That seems to be an important point; otherwise the reality of the sanctuary will not be observed. I should like to look again at the other point between now and the Report stage and inform your Lordships how the difficulty about lack of knowledge concerning ownership in some of these areas appears to me. I think it would be much simpler to adopt my scheme, but it may be that there would be difficulties in that scheme because we cannot tell who is the owner of the area. Perhaps we may look at it together and see whether we can work out some convenient and simple method of dealing with the problem.

§ VISCOUNT TEMPLEWOOD
I will certainly look at the point. What I say is based very much upon the experience of the Nature Conservancy. They tell me that they have had great difficulty, causing long delays, in regard to finding out particular ownerships. However, I will certainly look into the point.

VISCOUNT ELIBANK
With great respect, I think the scheme of the noble and learned Earl is rather too watertight; it is not elastic enough. I think the scheme of the noble Viscount is better from that point of view; it is more likely to lead to the creation of bird sanctuaries, without holding them up.

§ On Question, Amendment agreed to.

§ Amendment moved— Page 3, line 5, leave out from "bird" to ("shall'') in line 6.—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ Amendment moved—

§ Page 3,leave out lines 12 to 16 and insert— ("Provided that—

(i) an authorised person shall not by virtue of any such order be guilty of an offence by reason of the killing, injuring or taking of or an attempt to kill or take, a wild bird included in the Second Schedule to this Act or by reason of the taking or destruction of an egg of a wild bird so included;
(ii) the making of an order under this section with respect to any area shall not 831 affect the exercise by any person of any right vested in him, whether as owner, lessee or occupier, or, in Scotland, as limited owner, of any land in that area, or by virtue of a licence or agreement.

(2) So much of any order made by the Secretary of State under the Wild Birds Protection Acts, 1880 to 1939, and in force immediately before the commencement of this Act as prohibits the taking or killing in any particular area of all wild birds or the taking or destruction in any particular area of the eggs of all wild birds shall be deemed to be an order made under this section, and subject to the provisions of this Act any person who contravenes that prohibition shall be guilty of an offence against this Act.")—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ Clause 2, as amended, agreed to.

§ Clause 3:

§ General exceptions

§ 3.—(1) Nothing in subsection (1) of section one or in any order made under section two of this Act shall make unlawful—

(a) the killing of any wild bird not included in the First Schedule to this Act—

(i) in pursuance of any power conferred on the Minister of Agriculture and Fisheries by or under the Diseases of Animals Act, 1950; or
(ii) in pursuance of a requirement by the Minister of Agriculture and Fisheries under section ninety-eight of the Agriculture Act,1947, or by the Secretary of State under section thirty-nine of the Agriculture (Scotland) Act, 1948;

(b) the taking of any wild bird if the bird is taken solely for the purpose of ringing or marking it and is then released;
(c) the killing, injuring or taking of any wild bird for the purposes of any experiment duly authorised under the Cruelty to Animals Act, 1876.

§ (2) Notwithstanding any of the provisions of, or of any order made under, section one or section two of this Act a person shall not be found guilty of an offence against this Act— (a) by reason of the killing or injuring of a wild bird other than a bird included in the First Schedule to this Act if he satisfies the court before whom he is charged that the bird was killed or injured while doing serious damage to crops, vegetables, fruit, growing timber or any other form of property or to fisheries;

§ 6.5 p.m.

§ VISCOUNT TEMPLEWOOD
The point of the first Amendment to Clause 3 is that orders under Clause 1 (2) may create an offence in taking eggs, in addition to the offences created by Clause 1 (1), and therefore the exceptions in Clause 3 (1) should apply to offences in subsection 832 (2) of Clause 1. I think that is an obvious Amendment. I beg to move.

§ Amendment moved— Page 3, line 17, leave out from first ("in") to ("section") in line 18 and insert ("or in any order made under, section one or").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
This Clause makes an exception of the killing of birds in pursuance of powers under the Agriculture Acts. These Acts, however, also refer to the taking or destruction of the eggs of birds which are pests, and consequently the exception should be wider. Accordingly, the Amendment substitutes for paragraph (a) in subsection (1) the new paragraphs (a) and (b), in more general terms; it also substitutes a new paragraph (c) for paragraph (b) in the Bill. This has the effect of making merely a small verbal Amendment—namely, the insertion of a reference to "an attempt to take" birds. I think that explanation covers this Amendment.

§ Amendment moved—

§ Page 3, line 19, leave out paragraphs (a) and (b) and insert— ("(a) anything done in pursuance of a requirement by the Minister of Agriculture and Fisheries under section ninety-eight of the Agriculture Act, 1947, or by the Secretary of State under section thirty-nine of the Agriculture (Scotland) Act, 1948; (b) except in relation to a wild bird included in the First Schedule to this Act, anything done by virtue of any power conferred on the Minister of Agriculture and Fisheries by or under the Diseases of Animals Act, 1950; (c) the taking of, or an attempt to take, any wild bird if the bird is taken or to be taken solely for the purpose of ringing or marking and then releasing it;").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
As regards the next three Amendments, the offences created by Clause 1 (1) include attempting to kill or take birds, and the exceptions, therefore, should also refer to attempts, as well as to killing. These Amendments make the necessary verbal changes. I beg to move.

§ Amendment moved— Page 3, line 32, after ("of") insert ("or an attempt to kill or take").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

833

§ Amendment moved— Page 3, line 38, after second ("of") insert ("or an attempt to kill").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ Amendment moved— Page 3, line 41, leave out ("while") and insert ("or that the attempt was made, while the bird was").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ LORD STRATHCONA AND MOUNT ROYAL moved, in subsection (2) (a), to leave out "serious." The noble Lord said: This may seem a very small matter. I think it was referred to by the noble and learned Earl, Lord Jowitt, either today or in his Second Reading speech, but I am informed that it should be sufficiently an offence under subsection (2) (a) that the bird in question was doing damage, since it would be difficult for any magistrate to differentiate between "damage" and "serious damage." It is really a question for the magistrate. I beg to move.

§ Amendment moved— Page 3, line 41, leave out ("serious").—(Lord Strathcona and Mount Royal.)

§ VISCOUNT TEMPLEWOOD
I suggest that it is not necessary to leave out the word "serious"; in fact, I think it is better to keep it in, otherwise somebody might start shooting a bird that we wished to see generally protected merely because it had done quite an insignificant amount of harm. My advice, therefore, would be to leave in the word "serious." It describes what we have in mind—namely, that it is serious damage that we contemplate, not simply picking a few buds off an individual tree.

VISCOUNT ELIBANK
I agree with the noble Viscount. Even if we leave the word in, it is left in the hands of tie magistrate to decide whether the damage is "serious," and I think it is an indication of what Parliament intends. I think it best to leave it in.

§ LORD STRATHCONA AND MOUNT ROYAL
In view of what the noble Viscount has said, beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

834

§ 6.9 p.m.

§ EARL JOWITT moved, in subsection (2) (a), to leave out all words from "crops" to the end of the paragraph, and to insert: and that there was no other practicable means open to him of protecting such crops.

§ The noble and learned Earl said: It is deplorable, but inevitable, that people should shoot a large number of birds because they are doing what birds naturally do with fruit trees and the like. Whether we call it serious damage or not, I agree that it is inevitable; but I should like to try, if I can, to protect some of these birds. I do not know that I have here the right form of words—indeed, it may not be possible to find the right form. But, quite frankly, the differentiation I want to make is this. I want to differentiate between my strawberry bed, for instance, and my cherry trees. I am not talking about acres of strawberries. It is impossible to net them. But I am speaking of the ordinary strawberry bed in one's garden, a patch, we will say, not as long as from here to the Throne—about half that distance. Now an ordinary person protects such a bed with a net. By protecting it with a net you prevent birds from getting into it. Another way of protecting it would be to stand beside it with a gun and to shoot all the birds that came along. In that way you would destroy a very large number of birds I fear, and that would be a lamentable thing. I realise that it is not practicable for people to use nets if they have acres of strawberries. I realise that it is not practicable to net cherry trees at all. But for the ordinary small garden, where you have a strawberry patch or a patch of raspberries, the normal thing is to net and not to kill the birds. If everyone is to start killing birds because they are taking raspberries or strawberries which the owners have not troubled to net, a large number of birds will be unnecessarily killed.

§ I have tried to devise a form of words which will meet this situation. I have suggested: and that there was no other practicable means open to him of protecting such crops. The point I wish to ask your Lordships to consider for the moment is this. Would it not be fair to say that where it is simple and not unduly expensive for a man to use a net to protect things, he 835 ought to use one, and, if he does not, he should not then complain that the birds do damage. I cannot help feeling that it is difficult to know where to draw the line and to say what is practicable. To protect a small strawberry patch with a net is certainly practicable, but is it practicable to protect a quarter of an acre in the same way? In the last resort, I suppose, that would have to be a question of fact for the magistrates. I am anxious, if I can, to prevent an unnecessary holocaust of birds. I think it could so easily be prevented by the use of nets. I beg to move.

§ Amendment moved— Page 3, line 42, leave out from ("crops") to the end of line 43 and insert the said new words.—(Earl Jowitt.)

§ VISCOUNT TEMPLEWOOD
I am doubtful whether we can get a form of words that will effect the noble and learned Earl's purpose. There are such widely differing conditions. If I may quote my own case, I have several acres of blackcurrants, and I do not know how they could be protected with nets. In fact, I think it would be impossible to do so. Obviously, I could not net them. I think that other noble Lords will have in their minds difficult cases of a similar kind. As I say, I am doubtful about this form of words. I see no objection in principle to the Amendment at all. We have here a representative of the Ministry of Agriculture and Fisheries and I do not know what he would say on this question.

§ THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE AND FISHERIES (LORD CARRINGTON)
I am certain that the Committee will have every sympathy with what the noble and learned Earl the Leader of the Opposition is trying to do. I think the difficulty here would arise in this way. The nearest sort of situation one can think of which exists at the present time is that of a farmer whose sheep are being worried by dogs. He shoots a dog, we will say, and I gather that in that case the farmer has two defences. He has the defence that there was no practical means other than shooting to stop the dog worrying his sheep—which is the same sort of thing as the noble and learned Earl has in mind. The 836 farmer has the additional defence that, having regard to all the circumstances in which he found himself, he acted reasonably in regarding shooting as necessary for the protection of his sheep against an attack or renewed attack. As I understand it, the noble and learned Earl's Amendment would do away with that additional defence which the grower of crops has got and would put him in a rather difficult position. He would have to look ahead to foresee all kinds of things that might happen if he is to be covered against this sort of thing. I wonder whether there is very much substance in what the noble and learned Earl is trying to do. He cited the example of his own strawberry patch. He and I grow strawberries for ourselves. None of us, I am sure, would dream of shooting the birds which attacked our strawberry patches. If we were going to do that we should have to stand on guard from dawn to dusk, or else hire someone else to do it, and that would be very expensive. I think that, in the ordinary course, we who grow strawberries in our gardens would naturally net. It is only if it became unduly expensive that you could not net, and then you would get the sort of situation arising of which the noble and learned Earl has spoken, and it would be necessary to shoot birds. I hope that, from that point of view, the noble and learned Earl will not press this Amendment.

§ LORD MATHERS
I wish to support my noble and learned Leader in the humane attitude which he is taking up. The noble Viscount's blackcurrants and Lord Carrington's analogy of sheep being worried by dogs do not seem to me to apply, because sheep worrying is something that can easily be proved, whereas I think it might be—and very likely would be—that the birds were protecting the noble Viscount's blackcurrants from green-fly or something of that kind, and by shooting them he would be destroying a protection instead of a menace.

§ VISCOUNT TEMPLEWOOD
I stand corrected.

§ EARL JOWITT
In view of what has been said—though I am rather sorry about this—I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

837

§ 6.17 p.m.

§ VISCOUNT TEMPLEWOOD
This is really a drafting Amendment, and I may say that the next one is the same. I beg to move.

§ Amendment moved— Page 3, line 44, after second ("of") insert ("or an attempt to take").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
I beg to move the next Amendment.

§ Amendment moved— Page 4, line 1, at end insert ("or to be taken").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ Clause 3, as amended, agreed to.

§ Clause 4:

§ Prohibition of certain methods of killing or taking wild birds

§ 4.—(1) If, save as may be authorised by a licence granted under section nine of this Act, any person—

(c) for the purpose of killing or taking any wild bird uses as a decoy any live bird whatsoever which is tethered, or which is secured by means of braces or other similar appliances, or which is blind, maimed or injured; or
(d) uses for the purpose of killing any wild bird a shot-gun which is constructed or adapted to hold more than two cartridges at a time, whether in a barrel or in a magazine, or of which the barrel measures more than one and three-quarter inches in diameter at the muzzle; or
(e) uses for the purpose of killing or taking any wild bird any form of artificial light,

he shall be guilty of an offence against this Act and be liable to a special penalty:

§ Provided that in any proceedings under paragraph (a) of this subsection it shall be a defence that the article was set in position by the accused for the purpose of killing or taking animals in the interest of public health, agriculture or the preservation of other creatures and that he took all reasonable precautions to prevent injury thereby to wild birds.

§ (2) If any person uses any mechanically propelled vehicle or boat or any aircraft in immediate pursuit of a wild bird for the purpose of driving, killing or taking that bird, he shall be guilty of an offence against this Act and be liable to a special penalty.

§ (3) Nothing in subsection (1) of this section shall make unlawful—

(a) the use of a cage-trap or not by an authorised person for the purpose of taking a wild bird included in the Second Schedule to this Act;
(b) the use of nets for the purpose of taking wild duck in a duck decoy which is shown to have been in use immediately before the passing of this Act;
(c) the use of a cage-trap or net for the purpose of taking a wild bird if it is shown that the taking of the bird is solely for the purpose of ringing or marking and then releasing it or for the purpose of an experiment duly authorised under the Cruelty to Animals Act, 1876.

§ 6.18 p.m.

§ EARL JOWITT moved, in subsection (1) (c), after "injured" to insert "otherwise than by being pinioned". The noble and learned Earl said: I wish there was no Clause 4 to this Bill.

§ VISCOUNT TEMPLEWOOD
I will accept this Amendment.

§ EARL JOWITT
Still, on the basis that there is a Clause 4 (I am shortly going to move that it should be deleted) I have to move this Amendment. I had duck in mind; I am told that we must make it plain that this Amendment does not apply to geese. I never meant it to apply to geese, but I think I had better move the Amendment in this form at the moment. I know that Lord Hurcomb has a view about the matter. I should be prepared to have this confined to duck. Perhaps it would content your Lordships if we passed the Amendment in this form without prejudice to devising appropriate words between now and the next stage to ensure that it does not apply to geese. I beg to move.

§ Amendment moved— Page 4, line 29, after ("injured") insert ("otherwise than by being pinioned").—(Earl Jowitt.)

§ VISCOUNT TEMPLEWOOD
I am prepared to accept the Amendment. I agree entirely with the noble Earl that it ought to refer solely to duck and not to geese. If necessary we will make that clear later.

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD moved, in subsection (1) (d), to omit all words after the second "barrel," and to insert: has an internal diameter at the muzzle of more than one and three-quarter inches or

§ The noble Viscount said: The object of this Amendment is to define more exactly than was done in the original draft the size of a punt gun. I do not like any of these punt guns, but if we are going to have them we want the size of them 839 restricted. I understand, from the inquiries that have been made, that this is about the average size of the punt guns that are being used. There may be bigger ones, but this was the recommendation of the two Advisory Committees and if we are going on with the clause I think this is the right kind of provision to have.

§ Amendment moved— Page 4, line 33, leave out from ("barrel") to end of line 34 and insert ("has an internal diameter at the muzzle of more than one and three-quarter inches or").—(Viscount Templewood.)

§ EARL JOWITT
If we are going to deal with this matter, why have the punt gun at all? I think it would be better to deal with this matter by proposing that there should be no punt gun in future. It seems to be so extraneous to the Bill that it is a pity we do not drop this clause.

§ VISCOUNT TEMPLEWOOD
Again this is the result of compromise. This is what the Advisory Committee accepted, after discussion with the wildfowlers, and I hesitate to upset the compromise. Left to myself, supposing there had been no compromise and no long discussions of the subject, I should be very willing to see the end of the punt gun. I have regretted that while it kills a considerable number of ducks, the punt gun wounds a great many more. But there are few punt gunners in the world to-day—far fewer than there used to be. The race is becoming extinct. It was on that account that I accepted this compromise, with the hope at the back of my mind that in the not very distant future the use of this gun would come to an end altogether.

THE EARL OF ILCHESTER
This was a compromise with the wildfowlers, who particularly asked that it should be left in. I believe there are no shooting punts used in Scotland, but in England a certain number are used and I feel bound to support this Amendment, though personally I should be very happy to see shooting punts done away with.

§ On Question, Amendment agreed to.

§ THE EARL OF ILCHESTER moved, in subsection (1) (e), after "bird" to insert: , other than a bird included in the Second Schedule,

840

§ The noble Earl said: Two days ago I was asked by the County Councils Association to put down this Amendment. It refers to the killing or taking of wild birds by any form of artificial light. So long as it refers only to Second Schedule birds, I see no objection to it. The way this is done might interest your Lordships. They propose to have a very strong torch and shoot birds with air guns. The idea seems to me a little far-fetched. Perhaps some better way of doing it might have been found. The only way I have found of doing anything with starlings on a large scale is to have very smoky fires on a still day like this. But, of course, we cannot use that in London. I beg to move.

§ Amendment moved— Page 4, line 35, at end insert (", other than a bird included in the Second Schedule,").—(The Earl of Ilchester.)

§ VISCOUNT TEMPLEWOOD
I am ready to accept this Amendment.

§ EARL JOWITT
Does this prohibition in the Bill include the use of a torch? I suppose that in our young days many of us have gone duck flighting, and then, when the light failed and when we have been asked how many birds we brought down, we have said more birds than we actually had. We would then go round with torches to collect the birds and count them, and it would become darker and darker. Are we not to be allowed to use a torch to pick up the birds?

§ VISCOUNT TEMPLEWOOD
I should have thought the answer was that picking up does not come into this clause, which deals with killing. I certainly agree with the noble Earl that a torch is required for picking up ducks at the end of a late flight. I will look into it, because I am sure that to prohibit that is not what Lord Ilchester intended. Subject to that, I think we may accept the Amendment.

§ On Question, Amendment agreed to.

§ 6.28 p.m.

§ THE EARL OF YARBOROUGH moved, in subsection (1), after paragraph (e) to insert: or (f) uses for the purposes of killing or taking any wild goose any decoy in the form of a stuffed specimen or model of a wild goose.

841

§ The noble Earl said: Anyone living in the north-east corner of Lincolnshire, as I do, must have noticed the great decline in the number of pink-footed geese. I am informed that one of the chief causes has been the practice of shooting over decoys. I should like to quote from a letter from no less an authority than Mr. Peter Scott, himself a keen wildfowler, who has kindly given me permission to do so. He says: They"— the pink-footed geese— have not found such a sanctuary there,"— in Lincolnshire— and their numbers there are, I understand, much lower than they were twenty years ago. There is no doubt that persecution by a few keen wildfowlers with decoys, who account for far more than their fair share of geese, is chiefly responsible for this desertion of their former winter feeding-grounds. From this point of view, Mr. Davies's campaign is important. I feel that it should be supported by all moderate and reasonable sportsmen. Shooting geese over decoys is extraordinarily easy and provides very dull shooting, since the birds are hovering to settle; and in my view it is a thoroughly bad way of making a big bag. I do not think anyone, least of all myself, would wish to interfere with the activities of the genuine wildfowlers, than whom there are no finer people, not do I wish to discuss the ethics of sport, but I should like to say that Mr. Davies's campaign, which has already been referred to, resulted in 530 landowners and farmers in North Lincolnshire refusing to have shooting of geese ever decoys, I beg to move this Amendment, purely to prevent a few greedy persons from driving our geese away. If this Amendment is accepted, my second one follows as a matter of course. I beg to move.

§ Amendment moved— Page 4, line 36, at end insert the said paragraph.—(The Earl of Yarborough.)

§ VISCOUNT TEMPLEWOOD
I have every sympathy with the noble Earl in his Amendment and I am grateful to him for raising this question in Committee this afternoon. I have had a good deal of correspondence about the slaughter of geese in North Lincolnshire and South Yorkshire, and I should like to see it, if not stopped, at any rate very much restricted. It is significant that the 530 842 land owners and farmers whom the noble Earl has mentioned have banded together to stop decoy shooting on their land. I am told that the trouble is that there are certain tracts of land over which their writ does not run, to which gunners come, often from great distances, and shoot large numbers of pink-footed geese. The difficulty is to know how best to deal with them. I do not think anybody wants to stop the legitimate shooting of geese. What we do want to stop is the kind of case that the noble Earl, Lord Yarborough, cited to me before this Committee stage, of a man who had a gun with a silencer on it and who had killed seventy-three geese in the space of about an hour.
A further difficulty is that I am not sure whether the Amendment of the noble Earl would really be effective. He proposes that decoys should not be allowed. If decoys are not allowed for geese, I suppose it would follow that they ought not to be allowed for duck. I do not believe that a provision of that kind is really necessary. We have only just agreed to allow pinioned ducks to he used for duck fighting. As at present advised, I do not think we could entirely prohibit the use of decoys for geese. However, I will look into the matter between now and the Report stage—this Amendment has only recently been put upon the Marshalled List—to see whether we cannot deal with the kind of scandal that is at present going on in this area. If we can, so much the better. It may be that it would be a case for the declaration by the Home Secretary of a small sanctuary in the area—but I do not wish to prejudge the way in which we might be able to deal with it. I can assure the noble Earl, Lord Yarborough, that we will look into this matter sympathetically to see whether anything can be done.

§ EARL JOWITT
Before the noble Earl, Lord Yarborough, replies, I should like to say that I hope the result of the noble Viscount's inquiry into this matter will be that he will chance his arm and insert the Amendment. The story we have just heard of the killing of seventy-three geese in an hour is one of sheer, wanton slaughter. We must do our best to stop that sort of thing. I believe the noble Viscount will find that there is no reason in law why we should not prohibit the use of decoys or stuffed specimens in the case of geese, without doing it in the case 843 of duck. This Amendment certainly has my blessing, and I hope that, as a result of the further consideration which is given to it, the Amendment will be accepted.

LORD TERRINGTON
I should like to suggest that if there is no reason in law why we should not prohibit the use of decoys in the case of geese, without doing it in the case of duck, there is also no reason in practice, any more than there is any reason why some birds should be put into the "prohibited" Schedule and others left out. I feel that, both in law and in practice, it is a reasonable proposition.

THE EARL OF YARBOROUGH
I should like to thank the noble Viscount for saying he will look into the matter. I meant the decoys to refer only to geese, and not to ducks or pigeons. I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 6.34 p.m.

§ LORD STRATHCONA AND MOUNT ROYAL moved to add to subsection (1): Provided also that nothing in paragraph (d) of this subsection shall prohibit the use for the purpose of killing wildfowl of a shot-gun of which the barrel exceeds the measurement prescribed in the said paragraph and which was manufactured and in the possession of the person using, the same before the third day of November, 1953.

§ The noble Lord said: In moving this Amendment we come back to the punt gunner. I confess that I agree with what has already been said about the punt gun and the punt gunner. I have no personal experience of, or liking for, the punt gun, and I am glad to hear that it is not employed at all in Scotland. On the other hand, the spirit of compromise in this Bill must, I think, be upheld on behalf of the few existing punt gunners who might be affected by this clause of the Bill, and it is in fairness to them that I move this Amendment. I understand that there are only six or seven existing punt gunners to whom this clause would apply, and I therefore move the Amendment on their account. The purpose is to preclude hardship to any punt gunner whose existing gun exceeds the prescribed measurement. While it is not considered that new guns larger than those should be licensed, it is felt equitable to permit the use of those now in use. I beg to move.

844

§ Amendment moved— Page 4, line 44, at end insert the said proviso.—(Lord Strathcona and Mount Royal.)

§ VISCOUNT TEMPLEWOOD
We must remember that this is a Bill for the better protection of birds, both ducks and geese. On that account, I do not feel able to accept this Amendment. If there are any guns exceeding one and three-quarter inches in diameter, I feel they ought not to be used any longer. That being so, I am afraid I cannot accept the Amendment.

§ LORD STRATHCONA AND MOUNT ROYAL
In view of what the noble Viscount has said, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ EARL JOWITT moved to omit Clause 4. The noble and learned Earl said: I should like to tell your Lordships exactly why I move this Amendment. As we know, this proposed legislation started by being a Government Bill, but it has now become a Private Member's Bill. I have had a great deal of experience, and so has the noble Viscount, Lord Templewood, and between us we can think over a good many years of legislation both in this House and in the other place. Now that this is a Private Member's Bill, I would beg the noble Viscount to go in for a course of slimming and to throw out a great many of the matters which do not closely relate to the protection of birds. He said just now that we must always remember that this is a Bill for the protection of birds. We have here Clause 4 (1) (d) about which nobody has said anything. By that paragraph we prohibit the use of a shotgun which is constructed or adapted to hold more than two cartridges at a time, whether in a barrel or in a magazine. … What is the point of that? The Americans use guns of this sort, and they are much cheaper to buy than the ordinary gun. If I were a bird and I had to be shot, I do not think I should mind very much whether I was shot by an ordinary 12-bore shotgun or by one of these other guns. So far as getting in your shot is concerned, I should have thought that an experienced shot, with a good loader and two guns, would get in just as many shots as somebody using this type of gun. Absolutely nothing has been said about this gun. Only once in 845 my life have I seen one of these guns in use. I do not know whether they are more cruel than any other sort of gun, but by this paragraph we prohibit the use of this gun. Why should that be?

§ It may well be that somebody in another place will dislike this provision, and some agitation will be raised about it. I am at a loss to understand why it is necessary, in a Private Member's Bill for the protection of birds, which has my most cordial good wishes and support, to put in a provision of this kind. The more provisions such as this that we have in the Bill, the more we offer up hostages to fortune, and the more difficult it becomes to get the Bill through. I should feel much happier about the chances of this Bill if some of these provisions were thrown out. I have no objection to any of the items contained in this clause—I know nothing about them. I have never heard of anybody taking a wild bird in any form of artificial light, except that I have known a torch to be used after the evening flight to pick up, not only—mark you, my Lords—dead birds, but a bird which is not necessarily dead and which it is right should be picked up. I have never known people shoot from mechanically-propelled vehicles, or boats, except when the boat was stationary—although it may be done. But what is the point of it all? Is it really necessary, in a Private Member's Bill for the protection of birds, to have all these provisions? I humbly express my opinion that the chances of getting the Bill through would be far better if you left out some of these clauses and concentrated on what matters—the protection of birds. I beg to move.

§ Amendment moved— Leave out Clause 4.—(Earl Jowitt.)

LORD LLOYD
I feel that I have served the Committee well by saying very little, but I must say a word on this Amendment in view of what the noble and learned Earl has just said. If I understood him aright, he concentrated his argument on one particular aspect of this clause, but I gathered that he objected to the clause in general. Perhaps we could dispose of the particular argument about what I believe is known as a pump gun, which is a magazine gun. I do not attach any sanctity to that particular subsection in this clause, and I will say this to the noble Earl: he said that 846 he shot during the war with various people who were not very accurate, and he said that he did not think that a bird would mind being shot at with one of those guns. If some people had one of these guns I think he would mind being a bird, because they bring them clown one after another. Therefore, from the bird's point of view, there is something in prohibiting these magazine guns.
On the general question, the noble and learned Earl is quite right when he says that this was originally intended to be a Government Bill. Everybody has said in the past—and it is true—that the law about all wild birds, and the protection of wild birds, is in a hopeless state of confusion, and we must all admit this. The demand has therefore been made that we should have one Act of Parliament to which any sensible man could go to find out the law about wild birds. May I take this particular clause, Very little of it is pure consolidation. This clause is in most respects re-enactment and extension of the existing law. For example, the only parts of this Bill which could have been left out, on the ground that they do not materially alter the existing law, are Clause 4 (1) (c), Clause 7 and Clause 5 (1) (a), with the Fourth Schedule. To take the last clause as an example, it is an advantage to include it in the Bill if only because the Secretary of State will have, under Clause 8, a power to vary the Fourth Schedule, and this is a power which he does not now possess. I do not think Clause 7 is contentious, and I do not think there is anything to be gained by leaving it out. Far the rest, we take the existing law and amend it.
How are we going to do that? There are only two things we can do. One is to introduce a Bill of this kind, and if your Lordships will look at the Bill you will see that we have repealed no fewer than fifteen complete Acts of Parliament and parts of several more. The only other way is to amend existing Acts of Parliament, which inevitably means legislation by reference; and this, I think, in view of what has been said about wild bird legislation, is the last thing we want. Here, if I may, I should like to quote something which the noble and learned Earl once said to me on some Regulations which I brought before this House. The noble 847 and learned Earl said (OFFICIAL REPORT, Vol. 179, col. 1066): … it is not a matter of the substance of the regulations; it is a matter of the form. The principle at issue, as noble Lords on all sides of the House maintain, is that when this House is asked to pass a regulation, an ordinary intelligent reader, on reading the regulation, ought to be able to know what it is all about. I do not blame him for saying that—I think he was absolutely right. I do not think anybody could have understood that particular regulation, for it was a complicated one. But does that not apply equally to this Bill about wild birds, and do we not want an Act to which the ordinary intelligent man can go and find what is the law about wild birds?
If we are to do that, then we have to re-enact these various measures which are in other wild bird protection Acts of the past. We cannot avoid that. Therefore, I suggest to your Lordships that this is the only way in which we can tackle this problem. The noble Earl may say to me: "You could legislate by reference, by amendment, and then it could be consolidated." I concede that that is perfectly possible, but in the meantime what happens? There is, as the noble Earl knows as well as anybody, a long list of legislation to be consolidated. This will have to take its place, and nobody can say how long it will be before those who are consolidating can get round to this particular set of laws. In the meantime, not only should we have the existing fifteen Acts of Parliament which are being repealed, but one more which, I suggest, would be just as obscure, complicated and difficult to understand as any of its predecessors. For that reason, I hope that my noble friend will resist this Amendment, because I think that, from the point of view of the general public, no good object would be served by trying to mutilate the Bill in this way.

§ 6.48 p.m.

§ EARL JOWITT
I certainly shall not press this Amendment to a Division. There is an important point here, and I want the noble Lord to bear it in mind. I believe that this is the worst way of introducing legislation. Take Clause 4 (1) (a). Is there any noble Lord sitting on these Benches who knows to what extent that is existing law—what is new 848 in it and what is old? I say, quite frankly, that I certainly do not. I think that the Committee, when they are asked to pass a thing of this sort, ought to be told to what extent we are making new law. Is this all old law? Take, for instance, the business of a poisoned or stupefying bait. I believe that the only effective way of getting rid of magpies is to use a poisoned egg. There are hundreds of people who are using a poisoned egg, because a magpie, a jay or a carrion crow is the sort of bird that will take the eggs: the other birds will not. That is done up and down the country. Is that illegal or not? I am sure I do not know. Have you to get the consent of somebody or not? We are asked to pass this clause making it an offence in future to use poisoned or stupefying bait. It is true that you can get a licence from the Home Secretary, but that is a cumbrous sort of way of getting rid of your magpies, and we do not know where we are.
It is a point of great importance that in future we should not be asked to pass legislation of this sort in a Private Member's Bill. We do not know what we are doing—whether we are altering or extending the law. No one can tell us, and I suggest that this is a great mistake. I suggest, further, that if only you would give up this clause, and some of the other clauses we are coming to in a moment, it would simplify the passage of this Bill enormously, because, although we are anxious to get it through here, all these clauses make it difficult to get it through another place. Although I do not press my Amendment now, I hope that what I have said will be considered, to see whether there is a chance of improving the prospects of this Bill. If you can avoid difficulty, by jettisoning some parts which do not very closely bear on the birds, I hope that it will be done. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 4, as amended, agreed to.

§ Clause 5:

§ Restrictions on sale of live and dead wild birds, eggs, etc.

§ 5.—(l) If, save as may be authorised by a licence granted under section nine of this Act, any person sells, offers for sale or has in his possession for sale—

(a) any live wild bird, being a bird included in the Fourth Schedule to this Act of a species which is resident in or visits 849 the British Isles in a wild state, other than a close-ringed specimen shown to have been bred in captivity;
(b) an egg (including a blown egg) of a wild bird of any species which has nested in the British Isles in a wild state;

he shall be guilty of an offence against this Act and, if the offence was committed in respect of a bird included in the First Schedule to this Act or in respect of the egg, skin or plumage of such a bird, shall be liable to a special penalty.

§ VISCOUNT TEMPLEWOOD moved, in subsection (1) (a), to omit "shown to have been." The noble Viscount said: This is an Amendment which I do not think has any great significance. What we have done with regard to cage birds is to put into the Bill the existing provisions of the 1933 Act. In the existing provisions these words: "shown to have been" do not appear. The fact that we had put in a new adjective made all the cage bird people very nervous. They wondered if there was some ulterior motive in the words—but there was not. The safeguard is that all cage birds have to be ringed; they are ringed when they are very young—that is the only way to ring them. That is the test. Therefore, in my view, these words are unnecessary; and as they have worried the cage bird industry I think it is better to take there out.

§ I beg to move.

§ Amendment moved— Page 5, line 24, leave out ("shown to have been").—(Viscount Templewood.)

§ EARL JOWITT
I take it the cage bird people thought that in some way it shifted the onus.

§ VISCOUNT TEMPLEWOOD
That is so.

§ EARL JOWITT
If they want the words left out I have no objection to this Amendment.

§ On Question, Amendment agreed to.

§ 6.54 p.m.

§ EARL JOWITT had given Notice of his intention to move in subsection 1 (b), after "egg," where that words occurs a first time, to insert "other than a gull's egg." The noble and learned Earl said: This is an Amendment upon which I was going to spend some time, but in view of the next Amendment on the List I 850 think it is unnecessary for me to say anything. For a long time past now, since the war, we have enjoyed in the proper season the use of gulls' eggs, and I was amazed to see that, for some reason I did not appreciate, that was going to be made a criminal offence. That seems to be "misery for the sake of misery." I personally do not like gulls' eggs, but some people do. I should have thought that if there was any question of gulls decreasing in numbers it would be a different matter; but simply to prohibit the use of gulls' eggs for no apparent reason seems to me to be quite wrong. The fact is that some of the enthusiasts on this subject, people from whom we get much help, rather allow their enthusiasm sometimes to run away with them. I am far from suggesting that that applies to any of your Lordships—obviously it does not. There is a danger, however, that some people may get too enthusiastic and come to regard it as a terrible offence to eat an egg at all. But now that the noble Viscount has put down his Amendment, which exactly meets the case—I wanted only to preserve the right to eat gulls'eggs—I am perfectly prepared to accept his Amendment and not move mine.

§ VISCOUNT TEMPLEWOOD
I beg to move this Amendment. I think it carries out what is in the noble and learned Earl's mind.

§ Amendment moved—

§ Page 6, line 2, at end insert— Provided that, in the case of an egg of a black-headed gull, greater black-backed gull, lesser black-backed gull herring gull or common gull, a person shall not be guilty of an offence by virtue of paragraph (b) of this subsection if the purpose for which the egg is sold, offered for sale or in his possession for sale is the purpose of human consumption."—(Viscount Templewood.)

THE EARL OF ILCHESTER
I should like to say a word on this Amendment. Surely this is a Bill to preserve the birds and not to eat their eggs. It seems to me that the gastronomic ideas of some people have overcome what we are really trying to accomplish. The noble and learned Earl said that he had not heard that gulls had gone down in numbers; but the number of gulls killed by oil in the last twenty years is something appalling. If people want to eat gulls' eggs, there is no more to be said: but I do not like it I shall not vote against the 851 Amendment, but I would draw attention to my noble friend's wording. I know of a sanctuary, a very big one, in which there is a black-headed gull's nesting place. What is going to happen there? That point surely needs looking into. On the other hand, the black-backed and the lesser black-backed gull are carrion of the worst type. Is any one going to eat their eggs? I should be sorry to do so. There are, in fact, very few of them and I do not think they should be included.

§ EARL JOWITT
I should like to make my position quite clear. If anyone told me that the gull was decreasing in numbers I should certainly not eat the eggs. Presumably nobody eats gulls' eggs merely for the fun of doing it. If the noble Earl tells me that there is a danger of the serious diminution of any species, I am with him heart and soul; but unless he case is made out on that basis, then I am in favour of making hay while the sun is shining.

THE EARL OF ILCHESTER
I quite appreciate the noble and learned Earl's point. There is another matter which I want to mention, and that concerns the terns. We must be careful that the terns are not forgotten. This Amendment refers only to gulls, but there is in the public mind very little difference between gulls' eggs and terns' eggs. Surely we must safeguard that matter: it would be serious if we did not do so. I ask the noble Viscount whether he will look into that question.

§ VISCOUNT TEMPLEWOOD
I will certainly look into anything into which the noble Earl asks me to look. I cannot believe, however, that there is any danger of these quite common species of gulls decreasing. My experience is that they have increased out of all measure in my lifetime. It may well be that in certain places black-headed gulls, for instance, are breeding and mating under protection, and in that event I think it would be a case for a sanctuary. My own experience, even of the black-headed gull in Norfolk, is that it is increasing very much and that there is no risk of danger to it. I hope the noble Earl will be satisfied with this very careful Amendment.

LORD GIFFORD
I take it that this Bill does not overrule the idea of sanctuary.

852

§ VISCOUNT TEMPLEWOOD
Not at all.

§ On Question, Amendment agreed to.

§ Clause 5, as amended, agreed to.

§ 6.59 p.m.

§ VISCOUNT TEMPLEWOOD
I think it would be for the general convenience if we adjourned the Committee stage now, and I beg to move that the House do now resume.

§ Moved, That the House do now resume.—(Viscount Templewood.)

§ On Question, Motion agreed to, and House resumed accordingly.