HL Deb 29 March 1960 vol 222 cc452-64

4.11 p.m.

Order of the Day for the Second Reading read.

LORD DERWENT

My Lords, this is a Private Member's Bill introduced in another place by Mr. Marcus Kimball, the Member for Gainsborough. There, broadly speaking, it had the blessing of Her Majesty's Government, who gave considerable help in the drafting, and it passed through its stages "on the nod". I hope that your Lordships will find it equally uncontroversial. It is one of a series of gaming law Bills with which your Lordships have been dealing in recent years, the one that took the longest having been the Scottish Deer Bill. The background of all these Bills is the same. The game laws are, to some extent and in certain respects, out of date. There is big money in poaching nowadays: that leads to gang poaching; and that, in turn, leads to considerable cruelty. All these Bills, as I say, have come forward with that sort of background.

This present Bill amends in certain particulars the Night Poaching Act, 1828, the Game Act, 1831, and the Prevention of Poaching Act, 1862. I should say at the beginning that this Bill does not increase or decrease the present powers of a landowner or gamekeeper. The two main things that it does are to increase certain powers of police constables, to bring them into line with similar powers held by a landowner or a gamekeeper (it may surprise some of your Lordships to hear that these particular powers of a police constable are much less than similar powers of a landowner or gamekeeper), and to increase the penalties for poaching, to bring them into line with the modern value of money. I think that is all I need say generally, and I will quite quickly go through the clauses of the Bill drawing to the attention of your Lordships those matters that I think need stressing.

Clause 1 gives the police constable additional powers of challenge and, if necessary, of apprehension of a poacher. These new powers are, in fact, the powers held by the landowner or the gamekeeper at the present time. Under the existing law a police constable can challenge and apprehend a poacher only on the highway. In these days of cars and quick getaways those powers are not adequate for a police constable. Subsection (3) makes clear beyond a peradventure that these additional powers of arrest in no way affect the existing powers of arrest which a police constable has under the Prevention of Offences Act, 1851.

Clause 2 gives a police constable power of entry on to land to carry oat the duties he has been given in Clause 1. Alt the present time a police constable may enter on to land in pursuit of poachers (except in certain rare and unusual circumstances, with which I need not bother your Lordships) only if he is going to the assistance of a landowner or a gamekeeper. As we have given him these new powers of apprehension, it is considered necessary that he should be able to enter on Ito land in the same way as anyone else having these powers. Subsection (2) extends the power of entry for a police constable on to Crown Land and on to the private property of Her Majesty: and after the Third Reading in another place Her Majesty gave approval to the details of this Bill. Subsection (3), I can tell your Lordships at this stage, is not quite correctly worded. I believe that there will be a Government drafting Amendment put down on the Committee stage, and this will make the subsection mean what I am going to tell your Lordships now it does mean. This subsection takes away the power of entry of a police constable in the case of land owned or managed by the Service Departments, by the Minister of Aviation or by the Atomic Energy Authority; and that is on security grounds.

Clause 3 is the amendment of the Poaching (Prevention) Act, 1862., in so far so the provisions as to seizure and forfeiture of game, or what I may roughly term "poachers' gear," are concerned. It deals with the powers of the court as regards seizure and forfeiture. What we are really doing by subsection (2) is to alter the definition of what can be seized and forfeited. Under the Act of 1862, when we were still in the era of muzzle-loading guns, ammunition and cartridges were not included as things that could be seized and forfeited. These have now been included in the poacher's gear. In paragraph (b) of subsection (2) we have brought the wording of what is poachers' gear up to date. The old definition of 100 years ago was a little misleading. It referred to nets or engines and various other things, and an engine at that period evidently meant something different from what it does now.

By subsection (3) we are altering the powers of the court as to forfeiture of game or gear seized. Under the present law, when a prosecution is brought under the Act of 1862 the court has no option, if there is a conviction, but to order that the game and gear be forfeited; and it then has to be sold by auction. What we are doing by this subsection is to make the forfeiture of these things discretionary by the court and not compulsory. The reason for that is that in the last few years there have been a considerable number of cases where the poacher's gun has, in fact, been stolen by the poacher and the police have known who is the rightful owner. Under the law as it stands at present, the gun has had to be forfeited by order of the court; it has then gone up to auction, and if the rightful owner wanted his gun back he had to go and bid for it. By this subsection we make forfeiture discretionary on the court. Presumably, the gun will in most cases still be forfeited, but where it is known to be stolen, and where the proper owner is known, the court need not order forfeiture and the gun can be handed back directly to its proper owner.

Subsection (4) is, to some extent, a tidying-up. Under Clause 3 we have already dealt with new provisions as to forfeiture and seizure under the Act of 1862. Clause 4 provides that if the prosecution is brought under the Acts of 1828 or 1931 the same provisions shall apply to the court as regards forfeiture and seizure as they did in Clause 3. The only special subsection I draw to your Lordships' attention is subsection (5). It is necessary in this clause to have a definition of what constitutes "game". So far as possible we have retained the same definition as in the earlier Acts, with two exceptions. The Act of 1862 included in the definition of "game" the eggs of game birds. This is much more satisfactorily dealt with now under the Protection of Birds Act, 1954. So as to make certain that the sale of eggs is dealt with under that Act (which has a much better procedure) and all the eggs are dealt with we have, as it were, taken the eggs out of this definition of "game."

The only other point in this subsection to which I draw your Lordships' attention is the word "bustard". Personally, I have never seen a bustard, but they still exist and they are adequately protected under the Protection of Birds Act, 1954. In the ordinary way, they would have been taken out of this definition of "game", but by the Act of 1954 the Act of 1831 was amended and the bustard was deleted from the list of game birds. Owing to some oversight, those responsible forgot to delete it from the Night Poaching Act, 1828, so that now, in law, a bustard, poor bird, is game by night and not by day. It does not particularly matter whether it is or is not left in this definition in this Bill, but on balance, and to save any lawyer's arguments in the future, it was considered advisable to leave it in. If anyone does go on poaching a bustard, I think it is almost certain that he will be dealt with under the Act of 1954, and not under these Acts.

Clause 5 increases the penalties for poaching in accordance with the modern value of money. This seems common form in all amending Acts, on almost all subjects, where the original penalties were settled a long time ago; and these penalties were settled 100 years ago. What, in fact, this alteration means is this. At the present time an ordinary poacher—I say "ordinary" as opposed to a gang of poachers—can be fined up to a maximum of £2, however often the offence has been committed. That figure is now to be increased to £20. Where there is a gang of poachers—and this means five or more poachers working together—the maximum present penalty is £5 a head. This is now to be increased to £50 a head. I do not think I need say anything to your Lordships about Clause 6, which is self-explanatory. I think this Bill will help the hands of authority in dealing with the poaching question. I commend it to your Lordships, and I beg to move.

Moved, That the Bill be now be read 2a.—(Lord Derwent.)

4.24 p.m.

LORD OGMORE

My Lords, I was surprised in this year of Grace 1960, to find a poaching Bill coming before Parliament. One would have thought that in the long history of the rural parts of this country practically every stress and every sanction that could be put upon a poacher would have been put upon him. We have known for many years that in the rural parts of the country nothing aroused more upset than the question of poaching. Those who did poach and were caught 100 years ago, and more, got very short shrift indeed, and generally found themselves packed off to other parts of the world for their pains.

I personally, having perhaps traditionally more sympathy with the poacher than with the gamekeeper, would look with some doubt on this Bill to-day, were it not for two facts. I think the noble Lord, Lord Derwent, mentioned one of them and it is an important fact—that is to say, that the traditional poacher no longer exists. The poacher of 100 years ago was generally a man whose family had very little protein in their diet and were never able to afford butcher's meat: the only meat they could get was the meat they took from somebody else's land. As in many cases this land had belonged to the public and had been, by Act of Parliament, or even without Act of Parliament, gathered into the demesne of the local squire or local landowner, very often the villagers felt that it was no crime whatsoever to relieve him of a rabbit, a hare or a partridge, as the case might be. Even in my own boyhood I remember the villagers not far from my own home going out and smashing down fences of the local noble landowner whose agent, without any authority whatsoever, had suddenly decided that a piece of the common would be more properly within his property than existing as a common, as it had done for many hundreds if not thousands of years.

As we have heard from the noble Lord, Lord Derwent, to-day the change is important, owing to the fact that poaching nowadays is a highly organised industry, and people go out with vans and lorries, and even sub-machine guns, and shoot down the unfortunate deer or game. This practice, of course, must be stopped—there is no question about that. I, for one, welcome this portion of the Bill which enables the police officers to go on other people's land. The noble Lord said we should be surprised to hear that it was not in the Act of 1828 that a police officer could go on to land without permission. I should rather be surprised if there were, as there was no such thing as a police force in 1828: there were village constables, but no police force. It would be surprising indeed if we found that police officers were permitted in 1828 to go on to the land.

LORD DERWENT

My Lords, I did not say that noble Lords might be surprised to learn that it was not in the Act, but that they might be surprised to learn it if they had not read the Bill, as the noble Lord, Lord Ogmore, has obviously done.

LORD OGMORE

My Lords, I feel certain that, on any question affecting land and game, all noble Lords here this afternoon will have read the Bill. Usually, noble Lords in this House are very careful, and rightly so of course, about anything that affects the rural community.

One point which I think has not been made by the noble Lord, Lord Derwent, but which I think has some bearing on the Bill, is the fact that it appears that some of the virus diseases which are so prevalent in the countryside are carried by poachers. This is only suspected, because, of course, we do not know much about foot-and-mouth disease and possibly anthrax, and, also this new disease affecting foxes. I do not know whether the noble Earl, Lord Bathurst, speaking for the Government, or in his more personal capacity, can give us any information about this disease. Whether we believe in hunting or not—and people hold differing views about that—I think we should all deplore the departure from our countryside of that beautiful animal, the fox. Many foxes are being afflicted with this terrible disease, which is not only a killing disease but a very painful one, too.

There are only two other points I have to make on the Bill; they are minor points. The first is that I do not know why the blessings of this Bill should not be vouchsafed to the First Lord of the Admiralty, the Secretary of State for War, the Secretary of State for Air, and the Minister of Aviation. After all, if Her Majesty the Queen's lands can be entered upon by a policeman in search of poachers why should not these gentlemen's lands be entered also? The noble Lord cannot tell me that it is so dangerous, that their lands are per se so dangerous, that it is highly dangerous for a policeman to go on to land where a poacher has already gone. I do not see why the noble Lord, Lord Derwent, should have included subsection (3). I admit that I see some cause for caution with regard to the fourth one, the United Kingdom Atomic Energy Authority, if any poacher has the temerity to go on to an atomic station, should there be any game there—and even the game must be suspect round an atomic station—we can hardly expect a police constable to risk his life in this dangerous surrounding. However, I do not think that consideration applies to the other three, and perhaps the noble Lord might consider on the Committee stage giving them the same benefit as the rest of the community.

The other point is on Clause 5; that is the increase in the fines. When my noble friend Lord Swaythling introduced a Bill a week or so ago to your Lordships' House in order to increase various fines before the magistrates and petty sessions he was told by the Government that it was not desirable to do this; that in fact Bills should not be introduced piecemeal to increase fines, and that the Government, in due course, when it felt so inclined, would bring in a general Bill whereby fines generally would be increased to bring the present fines into some relation to the present value of money. Why is there any difference between this Bill and that of Lord Swaythling? Why has the Government given its blessing to this provision? There may be a perfectly good explanation, but I should like to know what it is. Why is the Government prepared in this case to make a piecemeal increase in fines relating to the offences covered by this Bill? If I could have these questions answered—and I am sure they will be, either by the noble Lord or by the noble Earl on behalf of the Government—I shall be quite happy to give my support to this Bill.

4.33 p.m.

LORD SOM̃ERS

My Lords, this Bill has my entire sympathy, and I can assure the noble Lord, Lord Ogmore, that the poacher is certainly by no means extinct. He may not be the traditional figure he was 100 years ago, but he still exists. The only point I would question is on subsection (5) of Clause 4, which concerns the inclusion of rabbits in the definition of "game". I believe (and my noble friend will correct me if I am wrong) that it is now compulsory, at any rate theoretically, for any landowner to destroy rabbits that exist on his land. In fact, of course, it is quite impossible for any landowner to do so, for it would mean keeping an enormous staff who would be doing practically nothing except search for rabbits. However since it is theoretically compulsory, I wonder whether it is not rather a mistake to make rabbits more or less protected under this law. I think possibly it might be a good thing to leave those out.

THE EARL OF IDDESLEIGH

My Lords, I live at some distance from London and it may not be possible for me to be present at the Committee stage. Therefore I would take this opportunity of asking the noble Lord, Lord Derwent, whether he will tell us why he has used the word "snipes" in subsection (5) of Clause 4. The Oxford English Dictionary says the collective plural is usually "snipe". There may be some special reasons for taking this unusual course on this occasion, but I am sure we shall all be glad to hear what they are.

VISCOUNT COLVILLE OF CULROSS

My Lords, I wonder whether the noble Earl, Lord Bathurst, or the noble Lord, Lord Derwent, could hold out any hope that these provisions will be applied to Scotland? I know it would mean a certain amount of change in the various enactments mentioned, but I think it would be a great benefit were such a thing possible.

4.37 p.m.

EARL BATHURST

My Lords, we have had a great many surprises in the course of to-day in your Lordships' House, but I am certain that among those surprises this Bill was not one. We noticed on the list of speakers that there would be only two speakers and myself, but, needless to say, your Lordships have not failed this Bill. The noble Lord, Lord Derwent, said that the Bill went through "on the nod" in another place. Such is the disciplinary power of the Whips on both sides of the House, and especially on Her Majesty's Government side of the House, I fancy, in view of the composition of the Front Bench, this Bill went through "on the nod."

With the somewhat different methods whereby this sort of business is transacted in your Lordships' House, it was obvious that there could be a poacher's friend in your Lordships' House. My noble friend and I were trying to work out who exactly would be the first poacher's friend to speak in your Lordships' House, and I must admit that it was a great surprise to find that so respectable a person as the noble Lord, Lord Ogmore, should be the one to claim that honour. I am sure that there will be people up and down the country who are most grateful for the words he spoke. I, too, like the noble Lord, Lord SoM̃ers, can assure the noble Lord there are still many of the traditional poachers left, and would be only too pleased to introduce him to any number of them in the course of a week-end.

The bird, the bustard, was mentioned by the noble Lord, Lord Derwent, in the course of introducing this Bill in your Lordships' House, and my noble friend, who is a great expert in these matters, informed me that this bird lives particularly in Spain. He has seen many. There the method of catching him is by more or less running him into the ground with a small aeroplane. Whether, should such a sport be started in this country, it would be classified as sport or poaching, whether by day or night, I do not know.

LORD DERWENT

My Lords, I think that my noble friend is mistaken. I think that that is the great bustard.

EARL BATHURST

The only one I have seen was certainly a very big bird indeed. I think the noble Lord, Lord Derwent, would be the first to admit, along with his friends in another place, that this is a modest Bill and it deals with only certain considerations among the many of the game laws that are existing. The noble Lord said that they are out of date. Most of them were brought to the Statute Book a hundred years ago. Yet there is an interesting factor: that in the midst of all the increases of crime we hear about (except, possibly, some of those crimes that we heard mentioned the other day, such as cursing and swearing in public places and so forth), the crime of poaching, at least on the evidence of the criminal statistics, has in fact decreased very remarkably. In 1958 the number of persons dealt with summarily for poaching or unlawful possession of game was 1,478 compared with an average of 2,324 during the years 1935 to 1939. In the years 1930 to 1934 apparently the average was 3,000 cases in the course of the year.

LORD REA

My Lords, could the noble Earl say whether that includes salmon poaching?

EARL BATHURST

No, I do not think it does. I think that this is purely poaching for game, as described under these various Acts of a hundred years ago. I am certain that salmon do not come into the noble Lord's Bill.

We have heard described by the noble Lord, Lord Derwent, and the noble Lord, Lord Ogmore, that poaching is no longer the sort of … my delight of a shiny night in the season of the year"— the Lincolnshire poacher's concept. To-day it is a highly organised profession—a man with a very fast motor car, with watchers out to "tip him off" if police or keepers arrive. Automatic, pump action, 22 guns, with silencers, are all now part of the "engines of poaching" as they are called in the old Acts. Nevertheless, it is true, as the noble Lords, Lord Ogmore and Lord SoM̃ers, have said, that old poachers exist, and in the words I have here it is certain that my noble friend is not out to deal to-day with the isolated local poacher "sneaking the odd rabbit". I do not think that as Home Office terminology that would be quite correct, and I understand that at a later stage in your Lordships' House there will be Amendments dealing with the question of rabbits. I think probably to-day the more practical terminology would be "knocking off the odd tame pheasant", which is really what in fact happens.

With regard to the point the noble Lord, Lord Ogmore, raised, there is no difference to-day in a policeman being able to go on to somebody's land to stop and to prevent stealing and killing of poultry, which he was able to do, compared with going on to somebody's land to stop the stealing and killing of game. That is really the object of this Bill. This Bill does not attempt to bring up to date all the existing Game Laws—that would be quite impossible. It does, however, sharpen the teeth of the law and make it easier for those teeth of the law—that is, the policemen—to bite. I must mention the police. So far as they are concerned, I am certain that they will find it a useful Bill. It will help them to give better protection to the rights of landowners. But to avoid any misunderstanding or possible misconstruction of the effect of the Bill, I ought to make it clear that it does not mean that the police can be called upon to act as what might be called auxiliary gamekeepers. That is not the purpose of my noble friend's Bill. The police have many other preoccupations, and chief officers of police would not, I am sure, consent to any possibility of their forces being diverted from their usual duties for the special protection of private game rights, and I do not believe that landowners generally would expect them to do so. But perhaps it is as well that this position should be made quite clear to your Lordships. What I think that this part of the Bill will do is to give the police more effective means of carrying out their general duty to enforce the law.

My Lords, I have said that this is a modest Bill. It is a Bill in regard to which help has been given by the Government draftsman to the friends in another place of my noble friend who introduced it; and if your Lordships feel able to pass it, it may well make a helpful contribution to the enforcement of the law of this country.

4.44 p.m.

THE EARL OF BUCKINGHAMSHIRE

My Lords, before the noble Lord, Lord Derwent, rises to reply, I wish to rise to support the noble Viscount, Lord Colville of Culross, in his question about Scotland. I can speak to-day as a completely disinterested person. At one time I was the owner of land in Scotland, but am no longer. It seems to me surprising that this Bill does not include Scotland in its provisions. If I may put the noble Viscount's question in another way: can anyone, either the noble Lord who is responsible for the Bill or the spokesman for the Government, give us the answer as to why Scotland is not included?

4.45 p.m.

LORD DERWENT

My Lords, perhaps I may answer one or two questions that have been put—first of all those of the noble Lord, Lord Ogmore. I think that he has had most of his questions answered, except the one about Government land. There will be a small Amendment—a Government Amendment, I am told—on the next stage of the Bill. The reason why the police officer is not given complete powers of entry is on security grounds; but it will be made clear by the new wording that he will be able to go in on invitation. I think that is as far as I personally can go, because this is a Government point. I think they are probably right on security grounds. I believe the noble Lord had all his other questions answered by my noble friend in front. Is that correct?

LORD OGMORE

The noble Earl did not answer me about foxes, but possibly he does not know the answer to that.

LORD DERWENT

That is really outside the terms of the Bill. The point of my noble friend Lord SoM̃ers about rabbits is being dealt with on another stage. As a result of the Bill, I think I can safely say that the Government draftsman has now so arranged the Amendments that rabbits will be game when they are meant to be game, and will be a pest when they are meant to be a pest; but we shall see those Amendments on the Committee stage.

My noble friend Lord Iddesleigh does not like "snipes." I am afraid that he must go back to the old Acts of Parliament dealing with this, when they did like "snipes." I am always told by Parliamentary lawyers that to alter for the sake of altering the wording in an old Act leads to endless litigation; and "snipes", I understand, is the old word.

Then we come to the question asked by my noble friends Lord Colville of Culross and Lord Buckinghamshire: why the Bill cannot be extended to Scotland. I think we do not want it extended to Scotland. Let me explain why. Obviously, something as good as this we should not grudge to Scotland; but Scottish law, Scottish customs and Scottish outlook are somewhat different from those in England and Wales. Scotland has for that reason always liked to have her own game laws, and Scotland started amending her game laws before England did. I think that, on balance, for those reasons, and for one other reason, it would be wiser not to include Scotland. The other point is that this Bill has been generally welcomed, except by game poachers (I do not think it will worry the individual poacher, like the noble Lord, Lord Ogmore, and myself), in England and Wales, but I am advised that the welcome is by no means so general in Scotland. I am told that there might be considerable opposition by certain Scottish people to its extension to Scotland. So far as I am concerned, it is therefore most unwise to try to include Scotland in the Bill, because I might lose the whole Bill. I think that really is the case against including Scotland, and I hope that noble Lords will not press that matter.

On Question, Bill read 2a, and committed to a Committee of the Whole House.