§ 7.31 p.m.
§ Report of Amendments received (according to Order).
§ The EARL OF CRANBROOK moved, after Clause 2, to insert the following new clause:
§ Limitation of exceptions to section 1 of principal Act to persons under the age of 17 years
§ ".In section 2 of the principal Act (which creates exceptions to section 1 of that Act with respect to certain wild birds, nests and eggs) for subsection (4) there shall be substituted the following two subsections:—
§ '(4) Except in Scotland on Sundays and on Christmas Day, a person under the age of 17 years shall not be guilty of an offence under section one of this Act by reason of the taking or destruction of an egg of any common wild bird which the Secretary of State may by order made with respect to the whole or any specified part of Great Britain prescribe for the purposes of this subsection.
§ (4A) Except in Scotland on Sundays and on Christmas Day a person shall not be guilty of an offence under section one of this Act—
- (a) by reason of the taking or destruction of an egg of a wild bird included in the Second Schedule to this Act; or
- (b) by reason of the taking for the purpose of human consumption or of use as food for poultry, ornamental ducks, ornamental geese or swans, otherwise than from any area which the Secretary of State may by order specify for the purposes of this paragraph, of an egg of a black-headed gull or common gull; or
- (c) by reason of the taking or destruction of an egg of a lapwing before the fifteenth day of April in any year.' "
§ The noble Earl said: My Lords, in moving this Amendment I must first apologise for a pen having gone rather too far through the clause which is to be amended, with the result that the words "an egg of" which are inserted in manuscript in the Amendment as printed on the Paper which your Lordships will have found in the Printed Paper Office were not put in at the beginning. The second thing I have to apologise for is for getting up at all at this late hour when your Lordships have heard a great flood of rhetoric on the Bill we have just been discussing. My Amendment follows logically from the discussions which we had in Committee last week, when your Lordships decided, by a majority, that the existing law which allows schoolchildren to take the eggs of common birds should continue. Indeed, the whole 870 tenor of debate that day, was, I think, summed up by the noble Lord, Lord Bowles, who said that what we were discussing was whether or not young children should be subject to the mischief of the criminal law. Your Lordships decided that they should not, but in so deciding your Lordships kept in existence the existing law which permits not only young children but also adults to take the eggs of common birds. I do not think that any one of us would defend the taking of the eggs, or the forming of collections of the eggs, of British birds by adults. It is neither scientifically justified nor socially desirable, and accordingly I have put down this Amendment which is intended to ensure that the protection which your Lordships wish to give to children is not extended to adults.
§ I had some difficulty in deciding about the exact age, because there are a number of ages which appear in the Statutes. One cannot take a child under fourteen years of age into the bar of a public-house; that young person cannot buy a drink himself until he is eighteen years of age. It is an offence to seduce a young woman under sixteen; it is equally an offence to sell scrap metal to a boy who is under sixteen years of age. The age that I took was the age of seventeen, which is likely to be the age at which children will shortly leave school, and as I think your Lordships intended to protect school children it seemed to me appropriate to choose the age under which all children will normally be at school. I realise also that it is difficult to distinguish between the child of twelve, fourteen, sixteen, eighteen or twenty, and the law accepts that fact because, so far as I can recollect from sitting on a juvenile court bench, in any case of doubt, and where there is no other proof, the court itself may decide that the young person is under seventeen, and that young person is under seventeen so far as the law is concerned because the court has so decided. That does not so much matter here because I am not worried about the borderline cases.
§ What I want to do by my Amendment is to prevent the adult person from taking birds' eggs, and I think this Amendment will secure that. I gave the noble Lord notice that I was going to move this Amendment. It does not detract in any 871 way from what is said in the Bill; indeed it strengthens the Bill. I beg to move.
§ Amendment moved—
§ After Clause 2, insert the said new clause.—[The Earl of Cranbrook.]
§ LORD HURCOMB
My Lords, I am not going to re-argue the merits of this question with the noble Earl, Lord Cranbrook, at this late stage and after so long a debate to-day. The Amendment does not meet my point, which is simply that the idea of encouraging children to take birds' eggs is at least thirty years out of date as a way of interesting them in wild life. Not only that, but it makes it imposible for teachers to inculcate the desirability of conserving wild life. I should like to see the Statute Book in this respect made more intelligible and more enforceable, and for that reason I cannot agree with the noble Earl, although I quite realise the point he has in mind and I appreciate that he is trying to mitigate the effects of the decision which he induced your Lordships to take.
I submit that it is not quite correct to say that the law at present allows children, or anyone else, to take common birds' eggs. There is a power in the law as it at preesnt exists for the Home Secretary to legalise that process, if he sees fit; but three years ago the then Home Secretary (Mr. Henry Brooke, as he then was) revoked those Orders and they have never been restored, so that for the last three years it has not been legal for small boys or anyone else to take common birds' eggs. As I said before, no dire results have followed from that. It has been left to the good sense of the police not to prosecute unless there was some evidence of deliberate malice or mischief. As I understood what the noble Lord, Lord Bowles, said on the last occasion, there is a presumption in favour of anyone under the age of fourteen that he has not acted with malice, and therefore children up to the age of fourteen are effectively protected by the good sense of the police from being made criminals under the existing state of affairs.
If the noble Earl had been content to choose the age of fourteen there would have been nothing for us to argue about, but I do not want—and he does want, for reasons which I will not argue again—to allow boys who are in fact no longer 872 boys, up to the age of seventeen, to collect these eggs. A further point which comes to my mind is whether it is desirable to define a new age as the dividing line between criminality and otherwise. I am putting that very badly, but that is the point I have in mind, and on that I am sure the House will wish to be guided by what the Home Secretary thinks and what is said on his behalf by the noble Lord, Lord Bowles. I would have doubted it, but I am quite incompetent to express any opinion on that matter.
§ LORD BOWLES
My Lords, the noble Earl, Lord Cranbrook, was quite right in saying that it seemed last time we were discussing the taking of eggs from birds' nests, known as bird's-nesting, that there was a distinction between the young and the old. I think I was right in what I said; the presumption is, as the noble Lord, Lord Hurcomb, said, that a person under fourteen is presumed not to be able to have any real criminal intent unless malice is proved. That applies to children between 10 and 14. I think the position is this. When we last discussed the matter I explained that the Government were neutral about the basic issue of what the Amendment is about. Your Lordships decided on a Division that bird's-nesting should be allowed. If that view were maintained by Parliament my right honourable friend the Home Secretary would feel bound to take steps to make an order under Section 13 to deprive the eggs of certain birds of protection. I think if Parliament gives to a Secretary of State the power to make an order he may, with the advice of the advisory committee and so on, feel obliged to do so, and therefore I am not exaggerating when I say I think he would feel obliged to make an order under Section 13.
Without taking sides over the basic issue, I must say the noble Earl's clause seems to be unacceptable. However controversial the bird's-nesting provision, it at least follows a consistent line of permissible conduct. It does not say that what is right for a child to do is wrong for an adult. I find it hard to see how the noble Earl's clause would make it easier for anyone to teach respect for wild life. If bird's-nesting can be approved for young people, is it reasonable to argue that a father who really 873 knows something about bird's-nesting should be prevented from taking an egg when discussing wild life with his son?
The clause seems to be objectionable from a wider point of view. The law often distinguishes between what is permissible for adults and for young persons. The reason, however, is usually self-evident; for example, public safety or health, and physical and mental competence. Thus young people are not allowed to drive a car until they are seventeen years old. The law also distinguishes between young people and others in the development of criminal responsibility. It fixes the minimum age at ten. It regards the child between the ages of ten and fourteen as having no malicious intent to commit a criminal offence unless the contrary is shown. Since that is the general legal position, it would, in my view, be retrograde to introduce exceptional provisions in regard to bird's-nesting. If Parliament considers that common birds' eggs should be protected, the ordinary law as regards criminal responsibility should be applied, and that is the law I have been trying to explain. If not, let the removal of protection be absolute.
I should like to refer to the remarks of the noble Lord, Lord Sandford, at the Committee stage. He raised two matters. He asked first about consolidation of the present Bill and the principal Act. I can assure him that it would certainly be the intention of Her Majesty's Government to produce a consolidation measure as soon as possible if the Bill becomes law. As he will appreciate, I cannot enter into any precise commitment to-day. The noble Lord's second question was about bringing the Bill to the notice of the police if and when it is passed into law. I understand that my right honourable friend the Secretary of State would propose to issue a circular about the new provisions to the police and local authorities. Similar steps were taken in 1954 to publicise the principal Act. As the noble Lord will have seen, Clause 9 of the Bill empowers local authorities to publicise this legislation, and I have no doubt this power will be used.
§ THE EARL OF CRANBROOK
My Lords, I apologise for detaining your Lordships, but I must. With the greatest respect to the noble Lord and to the ad- 874 vice given by the Home Office, I cannot see why we cannot do something which was clearly the wish of the House at Committee stage. The noble Lord knows as well as I do that it was abundantly clear that all noble Lords who spoke during the whole of that debate on this subject made it quite clear that the one thing they wanted to do was to ensure that school children were not prosecuted for breaking the law. That was the chief matter in our minds. I think we all feel that adults should not be allowed to do this, and I cannot conceive any reason why we should not pass this Amendment: why young children should not be allowed to do something and adults should not be protected. I cannot see it is bad law, I cannot see it is unreasonable, and that is certainly what the House intended when it discussed the Amendment I put forward at the Committee stage. I think I must stand by my Amendment.
§ LORD BOWLES
My Lords, if I may speak again with your Lordships' permission, may I say that the new clause was carried by a majority of five; the decision was not so clear. I would advise the noble Earl that if he does stand by his new clause he is bound to find resistance from the Home Office when it gets to another place.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, the Question is that this Amendment be agreed to. Those in favour say, "Content"; to the contrary, "Not-Content". I think the "Not-Contents" have it.
§ THE EARL OF CRANBROOK
My Lords, may I ask whoever is deputising for the Leader of the House to advise me, because I do not attend your Lordships' House very often and I do not know what the custom is. I believe that if I divided the House now, quite clearly we should not have 30 votes and the Bill would have to be postponed to another day. Am I right?
§ LORD CHAMPION
My Lords I am bound to say first of all that the noble Earl is out of order in speaking after the Question has been put to the House. The second point is that there are difficulties. There would be a little difficulty 875 about calling a Division when clearly we do not have a quorum present. Perhaps I might suggest to the noble Earl that he does not attempt to press his Amendment at this stage. If he feels strongly, he can do so at a later stage. We are still only on Report stage on this Bill; there is yet to be the Third Reading, upon which an Amendment may be put down. I would suggest that the noble Earl might discuss it when more Members are present in the House.
§ On Question, Amendment negatived.