GAME BILL [H.L.] (Hansard, 22 January 1970)

§ LORD DERWENT
My Lords, I beg to move that this Bill be now read a second time. May I start my saying a word about the drafting? I should like first to thank the Table for the help they have given me with the drafting. We found when drafting this Bill that we were likely to get into less trouble from the legal point of view if we tried to amend the 1831 Game Act by reference back rather than by trying to re-write any part of the Game Act. But I am afraid this presented certain difficulties to your Lordships, because it appears that it is virtually impossible to get hold of a copy of the 1831 Act except in the bound volumes; and it is for that reason that I have put in a Preamble to the Bill and also had photostat copies of the two sections of the Act which I want to amend placed in the Printed Paper Office.
The Bill seeks to amend two sections of the 1831 Act. Both those sections have the same underlying principle; they are to protect certain game birds—or, as the Act rather pleasantly calls them,"birds of game "—during certain parts of the year, the parts of the year when they are mating, laying, hatching, rearing, and while the young birds are growing up. I in no way wish to alter that. I am quite certain your Lordships all agree that these birds must be protected during those periods. But there are, perhaps naturally after an Act has been in force 140 years, certain details which in modern times I think require altering.
Section 3 of the Act deals with three offences. I do not wish in this Bill in any way to alter the offences, but only the penalties for those offences. The first offence is killing or taking these birds on Christmas Day or Sunday. The 252 penalty provided in the Act is £5, and I am not suggesting an alteration there. The next offence under Section 3 of the Act is taking or killing birds out of season—that is, during the periods I have already described, the close season. The maximum penalty under the Act is £1, for each head of game so taken; and under Clause 1(1)(a) of this Bill I am suggesting that this penalty should in modern times be £5. May I say this? Your Lordships may feel that the penalties I am putting into the Bill are perhaps inadequate (they are, of course, maximum penalties), in view of the other penalties that were included in the Game Laws Amendment Act 1960—which deals with different matters but also with game— where the penalties were made much higher. If any of your Lordships wished at a later stage to suggest that the penalties should be higher, I should be very willing to listen; but as an initial step I have decided to ask your Lordships that the maximum penalties should be £5, instead of £1 for each head of game taken.
The third offence under Section 3, laying poison on the ground with a view to killing or taking specified game birds, is a very serious offence. It is obviously a serious offence because it not only may kill the game birds but may, and probably will, kill other birds; it may kill animals who pick up the dead birds. And I am advised that it may in certain circumstances certainly make a human being very ill, and possibly kill a person, depending on the poison used, if the birds are eaten. Even in 1831 the penalty for such an offence was very high for those days—it was £10. I am suggesting here that the maximum penalty for laying poison with a view to taking game birds should now be £20. So much for Section 3. As I say, the alterations I am proposing to this section come under Clause l(l)(a) of this Bill.
The real purpose of the Bill comes when we are dealing with Section 4 of the 1831 Act. Section 4 deals with two classes of person, licensed game dealers and other people, and it deals with two main offences. The first is that during the close season a game dealer, except during the first ten days of the close season, may not buy or sell game. Nobody else who is not a game dealer may buy 253 or sell game except during the first forty days of the close season—and when I say"game"I mean game birds; I am using"game"for short. I do not suggest that there should be any alteration in that except for a minor matter to which I will come later. But in so far as that offence is concerned I am suggesting that the maximum penalty under Clause l(l)(b) should be £5, instead of £1. Here again your Lordships may feel that the penalty is too small, but we can deal with that point at a later stage.
I now come to the other offences dealt with under this clause; and it is these that I wish to alter. Under the 1831 Act, neither a game dealer nor a private person may during the dose season, except for the ten days and the forty days to which I have referred, have in his shop, in his house, in his possession or under his control any of these game birds: partridges, pheasants, black game and so on. It is an offence for any of your Lordships during the close season —and I commit the offence, I know— under the Game Act to have game in your deep-freeze. It is an offence for a game dealer to have it in cold storage. It is an offence for the Savoy Hotel, shall we say in July, to have in its cold storage grouse killed in the previous season so that they can produce it for dinner on August 12 this year.
My Lords, when this Game Act was passed that was perfectly sensible, because in the middle of the close season if one had game in one's possession it was quite clear it had been killed or taken during the close season. But that is not so now, and the law is, I am certain, being broken quite unwittingly all over the country, because in modern times there is no reason why one should not have game in cold storage. This does not affect the buying or selling, which I am sure ought to be prevented during the close season: this is actually holding.
There is one other point with regard to dealers. In 1831 not many people bought game—not many people could afford to do so. Nowadays, game is bought by every kind of person throughout the tend, and as a result game dealers, to meet the market, have to carry a very much larger stock towards the end of the season than they would have had in the old days. What are they to do with this stock if it is not sold? Throw 254 it away? It seems peculiarly wasteful. What they do is put it in cold storage and sell it when the season is open again. The offence (as it is at present) of holding is the main thing that I want to alter by this Bill, so that a dealer or a private person will be permitted to have game in his possession—not to buy or sell it—during the close season. This does not affect the poaching of game in the close season and so on, because that comes under different Acts.
There is one other point, which comes under Clause 1(2). It is not clear from the wording of the: Game Act exactly what one can have in one's possession in the way of game birds. A man may have birds in a mews or breeding place, but under the Act he may not buy or sell. Subsection (2) of Clause 1 provides that he may buy or sell, or have in his possession, birds for breeding or for exhibition purposes. The reason I have brought in this provision is that, as your Lordships know, while it was not a common practice in 1831 it is nowadays a very common practice to buy poults, young birds, for rearing. They are invariably bought and sold during the close season, and are then put out for rearing. There are various ways of doing this—under broody hens, for instance—rather than by hatching out the eggs. 1 am advised that under the Game Act this buying of young birds for rearing is illegal. As it. is a common practice and serves a useful purpose, and does nobody any harm—indeed, game farms are set up for this purpose—I am suggesting that in future people should be allowed to buy and sell, and have in their possession, birds for rearing during the close season.
As regards the exception of young birds for exhibition purposes, the reason I have included them in the Bill is that there is quite a trade now in breeding golden pheasants, Reeve pheasants— those rather exotic types of pheasants— for aviaries and exhibitions, for zoos, and so on. Nobody in his senses puts these birds out in the woods to go with their other pheasants because all their cocks are very pugnacious and drive off the ordinary cocks in the breeding season. As I say, the birds are bred for exhibition purposes, or for zoos and aviaries, and they are often bought and sold in the close season. However, they are 255 pheasants, and under the present law you are not allowed to have them, and you are not allowed to buy or sell them. This is a comparatively new activity. I do not think the Game Act ever visualised this sort of trade, and there seems no harm in allowing this to be done.
My Lords, this is a modest measure. I am trying to bring up to date what was not nonsense in 1831 but is undoubtedly a bit of nonsense now. I beg to move.

§ LORD BESWICK
My Lords, I wonder whether I may express my admiration to the noble Lord, Lord Derwent, for the way in which he explained both the Bill and the background to it. One could almost see some of these birds flying about, or not flying about, as he described them to us. The attitude which the Government take towards this measure is one described to me as"neutrality ", but I would say that to me the Bill appears to reflect the sensible, practical and moderate approach to a problem which we should expect from the noble Lord. If the House agrees to a Second Reading there are certain aspects of the Bill which I would suggest should be amended, but, in general, the neutral posture of the Government will be maintained.
As I understand it, the Bill seeks to do three things: first, to increase the penalties for some offences created by the Game Act 1831; secondly, to remove the present restrictions on the possession of dead game birds in the close season; and thirdly, to permit, in the close season, the buying and selling of live game birds for rearing or for exhibition purposes. The proposed increases in the penalties for taking or killing game birds in the close season, and for selling dead game birds after the first ten days of the close season, seem reasonable and are acceptable to the Government. Apart from the fact that the penalties have remained unchanged for about 140 years, the proposed increases would have the effect of bringing those penalties into line with those prescribed in the Protection of Birds Act 1954 for comparable offences in respect of birds on the Third Schedule to that 256 Act, which includes those species of wild bird, other than game, normally shot for the table. However, I think the noble Lord referred to the higher penalties prescribed in the Game Laws Amendment Act 1960. The offences in the 1960 Act which attract the higher penalty are concerned with trespassing in pursuit of game —in other words, poaching, which is rather a different offence from that of killing out of season, which is the offence in Section 3 of the 1831 Act with which the noble Lord is principally concerned.
I am less sure about the need to alter the penalty for laying poison with the intention of killing or injuring game birds; not because I think a higher penalty is not justified, but because I doubt whether it is usual nowadays for a prosecution for such an offence to be brought under the 1831 Act. There is a better alternative in the Protection of Birds Acts. Section 5 of the 1954 Act, as amended by the 1967 Act, makes it an offence, punishable by a fine of up to £25 or one month's imprisonment, or both, to use any poisoned, poisonous or stupefying substance for the purpose of killing or taking, or with intent to cause bodily injury to, any wild bird. In this context, the term"wild bird"includes game birds. Whilst I am open to correction, I should have thought this was a better provision under which to bring a prosecution against a person who had laid poison. However, as the offence created by Section 3 of the 1831 Game Act still subsists, the Government would not wish to object to the modest increase in the penalty proposed in the noble Lord's Bill.
The second proposition in the Bill— that is, the proposal to permit the possession, but not the sale, of dead game birds throughout the close season—would also have the effect of bringing the law regarding game birds on this matter into line with that in the Protection of Birds Act. Under that Act it is illegal to sell, or offer for sale, what are described in my brief as dead Third Schedule birds—namely, birds which, as I said earlier, are those species commonly shot for the table—during most of the close season but it imposes no prohibition on the possession of dead birds in the close season. There have been previous unsuccessful attempts by means of Private 257 Members' Bills to amend the law to enable game birds to be kept in cold storage in the close season. Generally those were wider than the present proposal, in that they sought to permit not only the possession but also the sale of dead game birds. Even this more restricted relaxation may create problems, however. For example, it might encourage the illegal killing of game in the close season, or present the risk of overkilling during the open season for laying in stocks. However, on this point I again maintain my neutral posture, and the Government will be guided by the wishes of the House as expressed on this or other later occasions.
If the Bill proceeds to Committee stage I suggest that it may be necessary for the noble Lord to have another look at the wording of the amendment to Section 4 of the Game Act 1831 which he is proposing in sub-paragraph (ii) of Clause l(l)(c) of his Bill. As now worded, the proposed amendment does not seem quite to secure the noble Lord's objective. Probably we could have a look at that before the next stage and I will explain the reasons for my reservations. I think it is just a question of extending his amendment to include the following few words in the 1831 Act.
I am not too clear about the reason for the inclusion of the last proposal, contained in Clause 1(2) of the Bill. The buying, selling and possession of live game birds in the close season, for the purposes of breeding or sale alive, by persons who are licensed to deal in game or who hold licences to kill game has been lawful since 1911. The actual provision which amended the Game Act in this way is rather obscurely tucked away in Section 10 of the Revenue Act 1911. I am not sure whether the noble Lord's researches took him to that Bill. Provided a person has lawful possession of a bird, no specific authority is necessary to enable him to exhibit it, and the present law may therefore be sufficient to allow the possession and sale of live 258 game birds in the close season for the purposes the noble Lord has in mind. Again, if the noble Lord wishes to consider that point in greater detail at his convenience, on some other occasion between now and the Committee stage—if the House agrees that the Bill should go forward—I shall be glad to look at it with him. Apart from those observations, I leave it to the House to decide.

§ VISCOUNT MASSEREENE AND FERRARD
My Lords, may I ask my noble friend whether this Bill applies to ground game such as hares? Under the Ground Game Act, I understand that if a farmer has hares in his ground he is allowed to shoot them at any time of the year.

§ LORD DERWENT
No, my Lords, the Bill does not apply to ground game. It applies to specified birds—pheasants, partridges, bustards, black game and grouse. I think that is the law. But the Bill does not apply to duck and so on; it applies only to specified game birds.
May I say that I hope the Government's neutrality is always as benevolent as on this occasion I am grateful for the suggestions made by the noble Lord. If he will allow me, I will come and see him before the next stage of the Bill, so that we can perhaps get it right, as only Governments can really get these matters right. Subject to your Lordships' giving the Bill a Second Reading this afternoon, I willingly and most gratefully accept the offer.