HL Deb 10 December 1953 vol 184 cc1175-86

3.46 p.m.

Order of the Day for the House to be again in 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 6:

Restrictions on importation of certain wild birds and eggs

6.—(1) Save as may be authorised by a licence granted under section nine of this Act, the importation of any of the following is hereby prohibited, that is to say—

  1. (a) any live or dead quail;
  2. (b) during the period in any year commencing with the first day of February and ending with the thirty-first day of August, any dead wild bird, being a bird included in Part II of the First Schedule or in the Third Schedule to this Act or a wild duck or wild goose, whether so included or not;
  3. (c) the eggs of any lapwing.

(2) The Secretary of State may by order—

  1. (a) extend the period referred to in paragraph (b) of the foregoing subsection with respect to, or prohibit entirely, save as may be authorised by such a licence as aforesaid, the importation of, all or any of the birds to which that paragraph applies;
  2. (b) prohibit, save as may be authorised by such a licence as aforesaid, the importation of all or any other dead wild birds, or of all or any other live birds, or of the eggs (including the blow eggs) of any other wild bird, for the whole or any specified part of the year.

(3) Where by virtue of this section or any order made hereunder any live bird has been seized as liable to forfeiture under the Customs and Excise Act. 1952, the Seventh Schedule to that Act (which relates to proceedings for forfeiture) shall not apply, but, if the Commissioners of Customs and Excise are satisfied that the bird has been imported in contravention of this section or of any order made there under, the bird shall be deemed to have been duly condemned as forfeited and no claim for compensation shall lie against the said Commissioners or any officer of customs and excise in respect thereof.

VISCOUNT TEMPLEWOOD

This is a small Amendment. It has been brought to my attention that there have been attempts to introduce various different species of quail into this country, and into some of the other countries on the Continent. This Amendment would make it possible to introduce, say, the Californian quail in order to try to acclimatise it within these shores. I beg to move.

Amendment moved— Page 6, line 14, leave out ("live or dead quail") and insert ("common quail, whether live or dead").—(Viscount Templewood.)

EARL JOWITT

To this Amendment as such I have no objection, but it does give me an opportunity now—and I am glad that the Lord Chancellor is here at the present time—to raise a question on this matter which I regard as one of very considerable importance. I am discussing the clause in the Bill, Clause 6 (1) (a), which refers to any live or dead quail. I want to state how I view this Bill all the way through. In the course of the debate on the Second Reading of this Bill, the noble Earl, Lord Ilchester, who has played a prominent part in introducing this Bill, and who served on the Committee which did such admirable work in connection with it, made some remarks which I want to quote. I had already raised the point that I felt it a great pity that there was a good deal of quasi-consolidation in this Bill. That is obvious enough if you look at the Schedule, but, as I shall show presently, it is not complete. The noble Earl, Lord Ilchester, said this [OFFICIAL REPORT, Vol. 184 (No. 6), col. 331]: I do not know that we have it in writing, but certainly my recollection is that the Home Secretary at the time, Mr. Chuter Ede, asked us particularly to consolidate these Acts. Therefore, naturally, we took that line. I confess that it has been a great disappointment to us that the Government have not been able to adopt this Bill as a Government Bill. It was drafted as a Government Bill… If that had been done in my time as Lord Chancellor—and I think it applies to-day as it did then—it would have come before the Legislation Committee, and if the Home Secretary had told me that he was trying in this way to consolidate the law, I should have raised the most violent objection.

I raise the objection on two grounds. First of all, I believe that, as a general principle, we ought to confine ourselves to alteration and amendment of the existing law, without at the same time attempting consolidation. If you do that you make plain what it is sought to do, how you are seeking to amend the law. And thereafter, when you have amended the law, you can adopt the well-recognised consolidation procedure, which is now working very happily, under which the matter is prepared by the special branch of the Parliamentary Counsel's Office concerned with consolidation. The Lord Chancellor, with the consent of the Speaker, has the power to suggest minor Amendments; then the matter goes before the Consolidation Committee, and you got consolidation in that way. It is true that that means taking two bite sat the cherry, but I venture to think that, as so often happens, this short cut of trying to get consolidation in this way, by this sort of Bill, is a great mistake and will lead to all sorts of confusion.

May I give an illustration of what I have in mind? If anybody read this Bill and knew that it was intended in part to be a Consolidation Bill (and, if you look at the Sixth Schedule headed "Repeals" it is obvious that it sets out to be a kind of Consolidation Bill) he might say: "This is an adequate and complete statement of the law." I take as an illustration an earlier clause. Clause 1, which deals with the offence of trespass. It makes quite plain that a person who kills a magpie (I am not going all over this matter again) has to show that he is both an authorised person and that the bird is included in the particular Schedule. In the case of the killing of a snipe, however, because the snipe comes within the Third Schedule of the Act, no question arises as to trespass. Therefore, if a man is guided by this Bill and takes a gun on to his neighbour's land with the intention of shooting a snipe, he will think to himself, "I am committing no criminal offence. I may be guilty of trespass and I may be proceeded against for trespass, and damages may be recovered against me if I have caused damage." If he took that view he would in fact be wrong, because under Section 30 of the Game Act, 1831, it is a criminal offence to trespass upon land in search or pursuit of woodcock or snipe.

What you have done in this Bill is to remove from Section 31 of the Game Act, 1831, the words "quails and land rails" but not the word "snipe." I venture to think that that is a perfect illustration of the mischief that arises from attempting to consolidate in this way. I am in sympathy with this Bill, but I beg the noble Viscount in charge of the Bill to see, between now and the next stage, whether it would not be wiser to eliminate from it all that which he thinks is merely consolidation. Look at Clause 4 of this Bill: what is consolidation and what is not? What is new and what is the existing law? I have not the least idea. The result is that we cannot really apply our minds to the alteration of the law, because what is being stated may be the existing law. It is only fair that Parliament should examine these Bills and apply a more critical eye towards new proposals than towards a provision which merely restates what is already the law. Therefore, I venture to think that this is bad.

This same topic came up on a very different matter a week ago—on the Food and Drugs (Scotland) Bill. There were several reasons why this course should be taken in that case, but on that occasion I ventured to give this particular illustration. My remarks will be found in the OFFICIAL REPORT, VOL 184 (No. 14), col. 930. The Lord Chancellor was good enough then to say this (OFFICIAL REPORT, Vol. 184 (No. 14), col. 953): Generally, I would agree with the noble and learned Earl that the convenient course is an Amending Bill; then, when it has become an Act and its consolidation is desired, to incorporate it in the body of law dealing with that subject. I am sure that is right. At the present moment what we have here—I have given only one illustration—is, I do not like to say a "half-baked" consolidation, but an incomplete consolidation, which is worse than no consolidation at all because it is misleading. I beg the noble Viscount to consider whether there is not some substance in this point, and whether it would not be wise to reconsider the Bill from this point of view. This little clause gives an illustration. It prohibits, save under licence, the importation of any live or dead quail. There is an Act of Parliament which, no doubt for good reasons, was passed in the year 1937, and which already makes it an offence to import live quail. There may be some reason why that Act extended only to live quail. Therefore, when you-say that there shall be no importation of either live or dead quail you are making an alteration in the law in respect of dead quail but not in respect of live quail. I think that is entirely the wrong way to do it. Therefore I object to that matter on a point of form. I am not going to press this Amendment at the present time. I am saying these things only so that they may be considered when the Bill comes before the House again. I shall not be here then, but I hope somebody will bear in mind that there may be some substance in what I am saying and, if so, will look at it from that point of view.

The other thing I should like to say is this. I should think it is forty years since I ate a quail. They used to be available in London hotels. Whether they are so available to-day I do not know. I do not frequent hotels very much, and, as I say, I should think I have not see a quail for some forty years. Therefore it is a matter of no importance to me whatever whether I ever again eat a quail. But I think the noble Viscount who is propounding this Bill should make some case for what we are asked to do. There may be a perfectly good case. I do not know what it is because, up to the present, we have not heard it. I merely ask this question: why should we not be allowed to import dead quail? This is a Bill for the protection of birds. Is it some kind of sumptuary law? It may be so, and therefore it may be perfectly sound. But if quail are not imported into this country I presume quail would go in larger quantities to France. As the noble Viscount the acting Leader of the House knows very well, I happen to be concerned with the tourist trade, and unless there is some good reason I object to our putting ourselves in the position that quail may be imported into France but may not be imported into England. We have had no sort of explanation as to why we should make a change in the law, to make it a criminal offence to import dead quail. That is the substance of the matter, and unless there is some compelling reason which makes it necessary to bring in a law to make it a criminal offence to import dead quail, then I am against such a change. Therefore, I hope the noble Viscount in charge of the Bill will tell us what in substance is the reason for this change. And I hope that between now and the next stage of the Bill he will consider favourably (all the more so because I shall not be here) the point that I have made about the undesirability of having consolidation mixed up with the ordinary amendment of the law.

3.38 p.m.

VISCOUNT SIMON

Having had some experience of this class of subject, may I say that on the main proposition which the noble and learned Earl has advanced I am confident that he is right. I shall not discuss the matters at the length at which he has discussed them, but the proper practice is perfectly well established. If you want to amend the law, you pass in the first place an Act of Parliament which will effect the amendments, and that is often followed by an Act of Parliament which consolidates the whole law, including the amendments which have just been made. I speak merely from recollection, but I give two instances straight away. There was good reason for thinking that the Companies Act needed amendment. We passed an amending Companies Act and, when we had done it, almost immediately there was produced a Consolidation Act which included those amendments and which repealed the Act which we had just passed as being no longer needed, thus giving us the whole law in a single code. Another instance which is in my mind arises in connection with India. My recollection is that there was first an amending Act, in the time of Montagu, which altered the Indian Constitution, and then, the existing law having been altered, there was the Consolidation Act which took up everything then in the Statute Book and wrote it over again in a single document, in order that people might have in their hands one single document which gave them the whole law. I am sure that that is the common practice, and I think it my duty briefly—much more briefly than I might otherwise do—to say that I believe the noble and learned Earl is right. I shall not discuss quails; I do not know about them.

VISCOUNT ELIBANK

When the noble and learned Earl the Leader of the Opposition raised this matter on the last occasion when we were discussing this Bill, I said that I wanted to get the best of both worlds. I thought that the noble and learned Lord who sits on the Woolsack was going to help me to get the best of both worlds. I am afraid, however, that after his speech I did not feel that I had reason to believe that I should get the best of both worlds. I now come back, and I wish to put in a plea to support what has fallen from the lips of the noble and learned Earl, and to suggest that serious consideration should be given to the point which he has made—namely, that we should have an Amending Bill to the law as it is and then a Consolidation Bill. At the present time we have two Bills under consideration, the Food and Drugs Bill and this Protection of Birds Bill, and we are going to set either a good precedent or a bad precedent. I hope that the noble Viscount who is in charge of the Bill will be able to give most earnest consideration to the point which the noble and learned Earl, the Leader of the Opposition, put forward, which was reinforced by the noble and learned Viscount, Lord Simon, and which has my heartiest support.

VISCOUNT TEMPLEWOOD

I find myself in some difficulty, faced as I am with these two great lawyers. I am merely a layman who has studied carefully the history, the very tangled history, of this matter over the last 73 years; that is, since the year 1880. Men and women who have been interested in birds have been saying, "Let us cut out all this old wood legislation, and let us get the whole thing under one cover, so that the Home Office, bird lovers all over the country, wild fowlers and the two Houses of Parliament can understand where we are." Lord Ilchester's Committee and the Scottish Committee, which worked upon parallel lines with Lord Ilchester's Committee, both considered this question and they came to the view that one of the first things necessary was to get all the legislation into one Act of Parliament. I raised the issue in a Resolution in this House about a year ago, and, so far as I can remember, everyone received with acclamation the suggestion that we should get all the legislation into one Bill. Now we have put it into one Bill. This is not just a bright idea of a private Member like myself; it is the considered view not only of the Government but of the expert bodies that have been considering this question for the last five years.

The noble and learned Earl takes a view, in which he is supported by the noble and learned Viscount, Lord Simon, but I still suggest to your Lordships that it is better to get all this legislation into one Bill. The noble and learned Earl is afraid that that is going to waste time and lead to considerable difficulty in getting a Bill of this kind through. I doubt that. The particular clauses that deal with the previous legislation, although they are not all consolidating clauses, by any manner of means, are not clauses that I believe are going to raise any particular controversy. I know that the noble and learned Earl has his view about quails, cage birds and lapwings. I may be very optimistic but I do not believe that the discussions, however they end, upon those three subjects are going to take long, and I believe that at the end of them the bird world generally will be very glad to have a single, comprehensive Bill. The noble and learned Earl made two criticisms. They seem to me, if I may say so, to be somewhat contradictory. He objected to consolidation, and he seemed also to object to this alteration in the law. Now let me come to the specific Amendment——

EARL JOWITT

Before the noble Viscount comes to the specific Amendment and tells us what the case for it is, may I say that I am entirely in favour of having all the law in one Bill? That is manifestly right. The only question is how you get it there. I suggest that the right thing to do is first to bring in a Bill which amends the law where it needs amendment, and then to go to the Lord Chancellor and ask him whether he cannot give a very early place in the queue to a Bill consolidating the whole law. In that way you would get one Bill and get rid of all these matters. That, I suggest, is the way to do it. It is not that I do not want one Bill; it is simply that I think this is the wrong way to do it.

VISCOUNT TEMPLEWOOD

I will certainly give the fullest possible consideration to anything which the noble and learned Earl says. As at present advised, I much prefer to accomplish what I gather is the common objective in one bite rather than two. I cannot see what harm is being done by doing it in one bite. Let me come to the noble and learned Earl's specific objection to a change in the law about quails. I take a special interest in quails. I was Home Secretary when I had the task of guiding through the Bill about quails which was passed in 1937. What was the state of affairs then? Quails were decreasing in numbers every year to a devastating extent. Everyone will agree that the quail is one of the most delightful of all birds. As I say, it was decreasing in numbers, and it looked as though it was going the way of the passenger pigeon which, after having been a very common bird, became extinct in our own lifetime. I went into the question thoroughly. and I discovered that one of the principal causes of the diminution in the numbers of quails was the fact that the Egyptians caught them in nets in the migrating season in order to send them to restaurants in London, and that in the year 1934, when I first inquired into this question, no fewer than 265,300 quails were sent to London restaurants. That was the great market. That was the incentive that made the Egyptians catch the quails. We had a series of international discussions, and eventually we persuaded the Egyptians to stop netting altogether in the migrating season. Parallel with that, we stopped the import of quails into London.

EARL JOWITT

How was that done—by Act of Parliament?

VISCOUNT TEMPLEWOOD

By an Act of Parliament for which I was responsible as Home Secretary in 1937.

EARL JOWITT

That applies only to live quails.

VISCOUNT TEMPLEWOOD

I do not mind; I am talking about live quails now; I will talk about dead quails in a minute or two. The live quails imported were fattened here and then people ate them in London restaurants. By stopping the markets, we stopped the gradual destruction of quails in Egypt. Better than that, our example was followed by France; France has now prohibited the importation of live quail. Italy has been a backslider, but I have reason to believe that she is coming into line and is going to stop importation of live quail. There could not be a better example of action in this country for bird protection. We took the first action and other countries followed. That is what I want to see. That is the principle of the whole of this Bill.

The noble Earl says that that is all very well: these are live quail; why bother about dead quail? I do not say that it is an important issue, but there is a possibility that, with all the new methods of deep freeze, dead quail may come in here. I understand that the French Government are going to stop the importation of dead quail, and I should like to stop it, too, and once again give a lead to other countries. I hope I have explained the position with reference to quail. It seems to me to be just the kind of example we need to show how important it is to have protection.

EARL JOWITT

As the noble Viscount said, the matter is not of great importance: there I agree with him. If it be the fact that France is contemplating similar legislation. I think the noble Viscount has made out a case for it, but I think it was right that he should make out a case for it. May I say a word on the previous point? The noble Viscount asks what is the harm of doing it in one move, instead of two, as I want. I ask for two because we cannot be sure that we have made the law complete. I have given one illustration already, and I think I have found others, where the law is not complete. I think it is a most mischievous thing to have a Bill which purports to consolidate but which does not take in everything that has to be taken in. The usual method of consolidation is to have the law considered by highly expert people, and then by the Consolidation Committee, so that all the loose ends are picked up; but in this Bill all the loose ends have not been picked up.

THE LORD CHANCELLOR (LORD SIMONDS)

As the noble and learned Lord has appealed to me, I should like to say a word. He has cited what I said recently upon another Bill as to the general principle, and I adhere absolutely to what I said, which is in agreement with all that the noble and learned Earl said. I would add that it would be vain to suppose that we can get the consolidation of all the Bird Protection Acts for some time. There is a long queue of Acts awaiting consolidation. Of course, it is a question of priority, but I doubt whether we could get a Consolidation Bill for the protection of birds for some very long time. Therefore, if we want to amend the law, we must bring in an amending Bill by itself. Like most things in life, it is rather difficult to generalise without any exception, and when we find, as we do in the case of the law relating to the protection of birds, an almost incomprehensible tangle (because that is what I understand it to be), a mere amendment is extremely difficult. We do not quite know what we are amending, and there is a great deal of legislation by reference. So I would not put it as an absolute role that it is never right to have a Bill which at once amends and consolidates. I venture this warning: that I know of other branches of the law where, upon consideration, it is likely to appear that the most convenient course is to have a Bill which at once amends and consolidates, and upon which all interests have been consulted and have been able give their views. Therefore, I do not rule out as an impossibility, in this case, a Bill which at once amends and consolidates. I agree, however, that it is a difficult task requiring expert consideration. I think the noble and learned Earl will agree with what I have said.

EARL JOWITT

I agree with every word that the noble and learned Lord the Lord Chancellor has said. We cannot lay down an absolute principle, but there may be a danger here, because consolidation is not complete. We do not make a job of it. I have given one illustration of where we have not made a job of this. All I am asking is that the noble Viscount in charge of the Bill should consider this matter and take advice about it, to see whether, in this case, as in so many others, the longer way round is not the shorter way home, and whether the most satisfactory way is to have the two steps I suggested.

THE EARL OF ILCHESTER

As the noble and learned Earl referred to the Home Office Advisory Committee over which I presided, I think I ought to explain how the whole thing came about. So far as I know, the answer I gave on Second Reading is absolutely correct. I was appointed Chairman of this Committee five or six years ago and (though I am afraid my memory is not so good as it was in those days) my recollection plainly is that we were asked to simplify and consolidate. I do not pretend to know the legal status of consolidation, nor I think would any of my colleagues on the Advisory Committee. Naturally, we were not appointed for that, but on the technical side. We were asked to produce a Bill, which naturally would be altered by the Parliamentary draftsmen. On one occasion when I was not in the House the noble Lord referred to a report. We were never asked for a report—that I can tell your Lordships quite plainly. We were asked to produce a Bill, because that seemed the easiest and quickest way of doing it. That is my recollection of how the whole thing arose. Naturally, knowing nothing about the law, my Committee left that side of the matter to the Home Office. There were representatives of the Home Office on the Committee, though I confess they changed very often. We were not pulled up and went gaily on, drafting a Bill which we produced and handed over to Mr. Chuter Ede as he was leaving the Government two years ago.

On Question, Amendment agreed to.

House resumed.