HL Deb 06 July 1967 vol 284 cc847-57

[The references are to Bill [139] as first printed for the Commons]

[No. 1]

After Clause 1 insert the following new Clause—

Extension of protection for eggs of common wild birds.

". The power of the Secretary of State under section 2 of the principal Act to prescribe common wild birds whose eggs may be taken or destroyed without contravening section 1 of that Act shall cease; and, accordingly, in subsection (4)(a) of the said section 2 the words from 'or of any other common wild bird' to the end are hereby repealed."

LORD HURCOMB

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 1. This Amendment restores an important provision in the Bill which was accepted by your Lordships in a previous Session in 1965, but which was deleted last year when I reintroduced the Bill after the Dissolution. It was then defeated on the Motion of the noble Earl, Lord Cranbrook, by the narrow majority of five votes in a House of 80. In another place it has been reinstated without any difference of opinion, after a most convincing speech by Sir Tufton Beamish, who succeeded me as President of the Royal Society for the Protection of Birds.

The clause removes the power of the Secretaries of State to prescribe common birds whose eggs may be legally taken. In 1954 it was thought that some loopholes should still be left for children to collect eggs, but this provision has imposed on the Secretaries of State a task which it is impossible for them to perform satisfactorily, and it has imposed upon the Advisory Committee a job which, individually, all the members loathe, which I am able to say as I know most of them well. It resulted, of course, in a list which inevitably included most of our favourites—our national bird the robin, the wren, the song thrush and the skylark.

The noble Earl argued that egg taking does not affect the population of these species, and from a purely biological point of view that is no doubt mainly true, though how long it will remain true I hesitate to predict. He argued, also, that an interest in natural history is best stimulated if children are encouraged, or at any rate permitted, to collect eggs. That argument may have had force thirty or forty years ago, but any such view is now obsolete, and the younger generation of naturalists with which I am closely in touch share my own outlook. Books, television, broadcasting programmes and membership of the numerous ornithological societies are the way to evoke interest and spread knowledge nowadays, and not the encouragement of the collection of eggshells. Moreover, I feel that the noble Earl has overlooked the very real risk that once the habit of collecting eggs is formed it will not stop at a few common eggs but will grow; and eventually, as children grow up, some of them, at any rate, will want to form complete collections, and some will become dangerous enemies of our wild life by concentrating, as some of these people do, on the eggs of the rarer birds.

A list of common birds' eggs at this time is open to two positive objections. First, it makes the task of the police almost impracticable. We have consulted them, and we know that. But it also makes the task of the teacher almost impossible. You can instruct children and persuade children to respect wild life and to leave the birds unrobbed, but what you cannot explain to a child is that it is right to rob a skylark but wrong to take the egg of some other bird which looks very like it simply because it is rarer. That is not an argument which appeals to children; in fact, I do not think it is an argument that appeals to people at all. That is the reason why teachers, whom again we have consulted, are so strongly in favour of the repeal of the power.

The argument—and it is a serious one—which may have weighed most with those of your Lordships who voted against me on a previous occasion is the objection to exposing children to prosecution for trivial offences. The figures quoted by the representatives of the Home Office in both Houses show that the police and the magistrates are well able to deal with this problem in a practical way. They do so by not taking proceedings or imposing penalties except in cases of malicious, wanton or aggravated breaches of the law.

Finally, my Lords, I may have been at fault on a previous occasion in not pointing out more clearly the fact that what this Amendment and the original clause seek to do is merely to confirm what has been the state of the law since 1963. In the severe winter of that year the then Home Secretary, now the noble Lord, Lord Brooke of Cumnor, revoked the orders then in force and gave the eggs of common birds full protection. All naturalists and bird-lovers were grateful to him for the decision and speed with which he acted. They were even more grateful to him for not renewing the orders. The noble Lord, as he now is, in the discharge of his difficult office, came in for at least his fair share of criticism, and perhaps more than his fair share; but here he did well. Not only that, but, having done it, he left well alone.

What I ask your Lordships to do is to accept the clause as it appears on the present occasion, remembering that your Lordships passed it without any serious differences of opinion in 1965, and that in another place it has been considered and accepted without any differences of view at all. I ask your Lordships, therefore, to confirm the existing situation, which has given rise to no difficulties and certainly to no spate of prosecutions of young children. I beg to move that the House doth agree with the Commons in the said Amendment.

Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Hurcomb.)

THE EARL OF CRANBROOK

My Lords, I confess that I hope this House will not agree with the Commons in this Amendment. I am no more impressed by the arguments adduced by the noble Lord, Lord Hurcomb, than I was previously, although I grieve considerably to see him in such bad voice because it makes me feel rather a cad, being in good voice myself, in arguing against him. I was amazed that he produced once again this argument that teachers find it difficult to teach children to differentiate between rare and common birds. I should have thought it must be an extremely unintelligent teacher and a practically mentally defective child who would fail to understand that the eggs of the osprey are protected because the osprey is an exceedingly rare bird and that the eggs of the thrush, as was the position in the old days, are not protected because the thrush is exceedingly common and abundant and no harm is done by taking its eggs. It is the most extraordinary argument, and it tends, I think, to show that the whole arguments in favour of this clause are roughly on the same lines.

I do not want to go into the pros and cons of that sort of detail again—and after hearing the observation of the noble Lord on the Government Front Bench, I do not want to detain him for a moment longer than is necessary; and if he gets a little bored with me perhaps he will feel it appropriate to leave the House. But the thing that worries me is the same thing that was worrying your Lordships about the Criminal Justice Bill two days ago. I live in the country, and I know country children and country people in a way that I think probably the noble Lord, Lord Hurcomb, who lives in the town, does not.

A short time ago I found a number of little boys running about taking water hens' eggs to eat. That, my Lords, is illegal under the present Act, as the noble Lord has just said. Their fathers, their elder brothers and their grandfathers, probably, did it, and probably took them from the self-same ponds. Country opinion does not look upon that as being a heinous crime, any more than country opinion looks upon taking the eggs of common birds as being a heinous crime, although country opinion does look upon the destruction of nests and the taking of the eggs of rare birds as being a thing which children should be discouraged from doing.

I cannot go to the parents of those children, all of whom I know, and say, "Your children are cruel, wicked children, taking these eggs". The ordinary countryman knows that no harm is done. He does not look upon it as a crime. Indeed, I should have thought that none of your Lordships would have wished to bring children of that sort of age within the compass of the criminal law, any more than your Lordships wished to do it two days ago when exactly the same argument was produced, in the case of the Criminal Justice Bill, about making it a crime for a child to possess a shot-gun. The point was made then by a great many noble Lords, and I thought that the noble Lord, Lord Peddie, made it admirably when he said that he would not wish to expose children below the age of 15 to the criminal law. That is the gravamen of my feeling about this clause—that it is deliberately intended to bring small children within the criminal law.

I am in some difficulty in speaking seriously about it, because the long and short of it is that it does not really matter whether his clause is passed or not: the police will take no action. On the last occasion the noble Lord opposite quoted the number of cases of young children who were prosecuted for offences against eggs and nests in the three years following the 1962–63 severe winter, when, in effect, this clause which the noble Lord suggests should be made law by legislative action was made law by administrative action.

So far as I can remember, the number of prosecutions over the three years was 54; that is, 17 per year. If one goes a little further back, one finds that the number of prosecutions in the immediately preceding three years, before this very heinous crime was made a crime at all, was slightly larger—about 76; that is, 25 a year. I cannot remember how many counties there are in England and Wales, but they number certainly more than six or seven times the number of prosecutions instituted during any one of those years. And, come what may, whether this clause is passed or not, country policemen and chief officers of country police are not going to prosecute these children; they are not going to take any action; they know that policemen would be looked upon as being madly stupid if they were to do so in a rural village.

So whether or not this clause is passed, the children whom I want to preserve from the law will not, in fact, have any cases brought against them. But I cannot believe that the noble Lord who is to speak for the Home Office is going to approve of that. Whether or not he is going to advise us to accept this Amendment, I do not know; but is he going to say that it is right that young children should be brought unnecessarily within the purview of the criminal law? Is it right that we should pass a law to-day which we know is not going to have any effect because the police are not going to bring any prosecutions? For both these reasons, it seems to me that this is a thoroughly bad clause. I should have thought that the first advice we should get would be from the Home Office to reject it. Even if we do not, I venture to hope that your Lordships will reject it.

LORD SANDFORD

My Lords, I stand before you as one who at the Committee stage in October last abstained on the issue now before us, because I was then uncertain as to the right thing. But I am quite clear now that we should accept the Amendment that has come from the other place, for reasons which I should like to spend a few moments in deploying. It is perfectly true, as the noble Earl, Lord Cranbrook, has said, that the Amendment which we are now invited to accept makes it an offence to go birds-nesting for any eggs except those of birds scheduled in Schedule 2 of the principal Act. At first sight, this seems a rather monstrous piece of legislation, but on looking at the matter more closely I wonder whether that is so. I would point out, for instance, that this provision does not introduce something new. The state of affairs that this Amendment will bring about is a state of affairs which was envisaged as long ago as 1954, when Lady Tweedsmuir, who introduced what is now the principal Act in another place, made it clear that this was the position envisaged in her Bill at that time.

In 1962–63—that severe winter during which the bird life of this country suffered so severely—my noble friend Lord Brooke of Cumnor, who was then Home Secretary, introduced by administrative action a series of Orders which brought about the state of affairs which these Amendments seek to make permanent. That has been the state of affairs since then and it is the state of affairs now. As the noble Lord, Lord Hurcomb, reminded us, a Bill in the form in which the Commons now ask us to accept it passed through all its stages in this House in 1965 without an adverse vote, and reached the Second Reading in another place, again without an adverse vote on this point, before being cut short by the Election.

It then came before your Lordships' House and, speaking for myself, I feel it true to say that at the Committee stage on October 31, 1966, some noble Lords allowed themselves to be carried away by the eloquence of the noble Earl, Lord Cranbrook, and voted in a way that I now believe to have been mistaken. The Bill then went to the Commons, and on April 12, 1967, Sir Tufton Beamish, who, as the noble Lord, Lord Hurcomb, reminded us, has now succeeded him as President of the Royal Society for the Protection of Birds, had no difficulty in getting the whole Standing Committee to see that it was right to reinstate this clause. The Bill then proceeded through the remaining stages in another place without further controversy on this point.

I think it also worth stressing that what appears to be such a monstrous situation has, in fact, as we have already heard, led to no more than 60 convictions over a three-year period since the regulations introduced by my noble friend Lord Brooke of Cumnor were first made effective. And those convictions were not convictions applying to this matter only but to all offences under the whole of the principal Act. This is a Private Member's Bill, and it would be quite improper for me from this Dispatch Box to give any advice to the House on how to vote on it, but I thought it would be helpful to set out facts which have a bearing on our decision.

THE EARL OF MANSFIELD

My Lords, with all the force and strength of voice at my command, I would beg the noble Earl, Lord Cranbrook, not to persist in his opposition to this clause. It would be a most unfortunate thing if it were not inserted, for a number of reasons, some of which—not all—I shall describe briefly to your Lordships. In the first place, if the taking of all save a very few eggs is made illegal, it would be easy for the school teacher to point that out to his charges and the children would not therefore be anxious to take eggs. Secondly, if they were to take them, the question of differentiation between rare and common species becomes really impossible.

THE EARL OF CRANBROOK

My Lords, has the noble Earl thought of the section on injurious birds? How are you to explain to children the difference between those eggs which they can take and the rare ones which they cannot?

THE EARL OF MANSFIELD

My Lords, it would be better if children refrained from taking any eggs, from injurious birds or otherwise, and leave it to the gamekeepers and the wardens to preserve the already too much upset balance of nature.

The noble Earl spoke cheerfully about differentiation between the osprey and the thrush, a suggestion which I feel does not merit any more discussion. But what about the difficulty of differentiating, quite honestly by intelligent and fairly well informed children, between the very rare birds and extremely common ones? It would not matter much if a child took the egg of the red chat or an oyster catcher, but it would be a disaster if he took the eggs of a black-winged stilt. It would not matter if he took the eggs of the whinchat, but alongside may be a nest of the rapidly-disappearing Dartford Warbler. Again it would not matter taking the eggs of a reed warbler, but for all the child would know it might be one of the very rare warblers which is believed or suspected to nest occasionally in parts of England and is struggling to establish itself. There are very few people in this country who can, with certainty, distinguish between many of these rare eggs. Quite often the most common birds' eggs show remarkable variation; and unless the nest itself is taken and submitted to an expert there would be no possibility of finding the true facts of the case. And, as the noble Lord, Lord Hurcomb said, it would throw a completely impossible burden on our overworked police.

It is not desirable that children should go hunting for eggs, because in so doing they may cause quite unintentional destruction by upsetting nests, and often cause young birds to leave the nest before they are fully fledged. This is something which happens much more often than people realise. I came across it very frequently when I was ringing birds. I often had to spend a lot of time replacing birds in nests which they had left prematurely. It is not always possible for that to be done unless one knows the technique. To go along a hedgerow or through coverts upsetting nests results in the lamentable destruction of young birds at a time when, with the growth in the use of noxious chemicals for weed-killing and other things, the birds have a great deal to contend with.

Most important of all, should your Lordships be so ill-advised as to support the noble Earl and reject the Clause, it means the end of the Bill. It means that the Bill will go back to the Commons who have no time to consider it further. That means that a Bill which is wanted by the protectionist bodies and which has been received enthusiastically by wild fowlers, by clubs and by everyone concerned with the preservation and increase of the bird population, will be lost, merely through the misguided efforts of the noble Earl. He will earn eternal ornithological obloquy and contempt as the Peer with the two left feet who stopped your Lordships' House from passing into law a measure desired by everyone who knows anything about birds.

THE EARL OF CRANBROOK

My Lords, may I say that as there is not a House, I shall not press this to a Division. That statement may shorten the proceedings. Also, I should like to tell the noble Earl, Lord Mansfield, that there is an hereditary "left-footedness" in my family, as my grandfather was one of those who introduced the little owl and the grey squirrel.

THE EARL OF MANSFIELD

My Lords, that is nothing to be proud of.

7.43 p.m.

VISCOUNT MASSEREENE AND FERRARD

My Lords, I do not propose to detain your Lordships for more than a few moments. The noble Earl has said that he does not propose to press this to a Division, but there is a point which has worried me about accepting the Commons Amendment. As I have said before, it would destroy the flexibility of the 1954 Act. Under that Act the Secretary of State has power to say that eggs of a common wild bird may be taken in any one season. I would point out that the size of the bird population is controlled by the amount of food available. I have one or two friends who are fruit farmers in a big way, and they are worried about the deprivations of certain common wild birds. Surely it is far more humane to keep the numbers of these birds in check by taking their eggs than by trapping them. If we had a series of very mild winters, the Secretary of State could say that the eggs of certain birds could be taken during one season, and surely that would be a practicable proposition. If the Amendment is accepted, we have no means of keeping the birds in check. There is no scientific evidence to support this Amendment which, in my opinion, is based on sentiment.

The noble Earl, Lord Mansfield, said that it would be impossible for children to distinguish between common wild birds and rare birds. As the noble Lord said, birds may be put on the pest list under the provisions in Schedule 2. But how are children to differentiate between the eggs of birds which are pests and those of rare birds? It is not really logical. All egg collecting would have to be banned in order for this to be effective. I pity the poor village policeman who might have to haul a lot of small boys before the court for stealing moorhen's eggs. He would be a laughing stock. I hope that this will not result in a great many prosecutions, but it could turn small boys into petty criminals. I hope that my prognostications may be proved wrong, but I do not feel too happy about the matter.

LORD BOWLES

My Lords, the noble Viscount, Lord Massereene and Ferrard, asked whether birds, when they become pests, may be so classified. The Secretary of State has the power, after consultation with certain advisory committees, to add to the species on the pest list in Schedule 2. Perhaps that may satisfy the noble Viscount.

At various times in our discussions I have emphasised that the Government attitude towards the proposals in the Bill is neutral. Now that we are, I hope, in the final stages I can perhaps say, without seeming too inconsistent, that the Government welcome the Bill as a useful addition to the principal Act. I can be more optimistic now that the noble Earl, Lord Cranbrook, has said that he does not intend to press this matter to a Division. The proposals in the Bill have been the subject of more than usual discussion. The advisory committee consulted many interested organisations before submitting their original report, and the interested organisations were consulted again before the noble Lord, Lord Hurcomb, produced his Bill for the first time. Your Lordships have considered the Bill in three separate Parliamentary Sessions. The Amendments made in another place are few, and with the exception of this one they are not substantial.

On this clause I have several times invited your Lordships to give a clear lead to the Government. Does Parliament want the Secretary of State to be able to make new Orders so as to keep young "bird-nesters" out of the mischief of the criminal law? As the noble Earl, Lord Cranbrook, and the noble Lord, Lord Hurcomb, have clearly shown, this question goes to the essential principles of bird protection. I must make clear that the Government hold no strong views on one side or the other in this matter. I ought, however, to say that, according to the Association of Chief Police Officers, no difficulty or embarrassment has been caused to the police since the Eggs of Common Birds Orders were revoked. That is to say, the police have been caused no difficulty because of these common eggs being protected as they are at present. Conversely, the police do not think they would be placed in difficulty if new Orders were made. One way or the other, it seems doubtful whether the risk of children being brought before the court for "bird-nesting" is very real.

In the Government's view, the important consideration is that, when so much has been agreed, the Bill should not be placed in jeopardy by prolonged controversy over this clause. The Government have carefully considered the arguments advanced on both sides of the House and have also taken note of the strong support expressed for the clause in another place, but on balance they think that the weight of argument is in favour of the noble Lord, Lord Hurcomb. Accordingly, I recommend that the clause be agreed to, and that the final stage of the Bill be completed this evening. Before I sit down, may I congratulate the noble Lord, Lord Hurcomb, on his persistent efforts and in getting this Bill so near the Statute Book. I hope that it will be on the Statute Book next Friday.

On Question, Motion agreed to.