§ 6.15 p.m.
§ THE LORD CHANCELLOR
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ House in Committee accordingly.
§ [THE LORD STONHAM in the Chair]
§ Clause 1 [Abolition of prerogative of the Crown as to wild creatures, and franchises derived therefrom]:
THE EARL OF CRANBROOK moved Amendment No. 1:
Page 1, line 7, leave out ("royal fish") and insert ("sturgeons").
§ The noble Earl said: Since my Amendment affects the prerogative, I am authorised to say that if this Amendment were proposed excluding not only swans but royal fish this would not be of any embarrassment to the Crown, provided that the Amendment made it clear beyond peradventure that it was being proposed by interests other than the Sovereign, as Her consent to the proposals has already been signified, and there must be no suggestion that such consent had been modified on Her Majesty's behalf (and that of 1421 course I can say quite definitely) and provided also that an appropriate assurance could be given by the Department of Trade and Industry that the Department would be fully responsible for any liability arising in connection with royal fish. That assurance I cannot give, but I imagine that the present position would be maintained and perhaps the noble and learned Lord could say so. If your Lordships agreed to my Amendment I have no doubt that the Government, through the Department of Trade and Industry, would accept the responsibility which they do at present.
This Bill was drafted by the Law Commission, which has as its duty,
the promotion of the repeal of obsolete and unnecessary enactments".
For those reasons it included a clause abolishing the Royal prerogative right to the bodies of whales, dolphins and porpoises cast up on the shores of this country, giving as an additional reason the possible delay involved in seeking the Royal approval when one of those bodies had to be dealt with.
§ This clause vitally affects the Natural History Museum, of which I happen to be one of the Trustees. I should perhaps explain to your Lordships that the Trustees are responsible for much more than the exhibition galleries to which you may take your children or your grandchildren. These form but a small part of the responsibilities of the Trustees, taking about one-eighth of the total money expended. Behind the galleries, unseen by the general public, there is one of the largest and famous research institutes in the world. One of the branches of science for which that institute is most famous is the study of whales, dolphins and porpoises. And there is in the museum an unrivalled collection of material, of skulls and skeletons, of soft parts and dissections, available for study not only by our own scientists, but also by scientists who come from all over the world to work there.
§ It has been possible to collect much of this material only because the Board of Trade are responsible for dealing, on behalf of the Crown, with stranded whales and dolphins, and since 1914—that is, nearly 60 years—the carcases of all whales and dolphins cast up on the shores of this country have been offered to the Museum as potentially useful scientific material. As it has been suggested 1422 that this arrangement might cause delay and problems of public health, I should perhaps explain the procedure followed. The coastguard who finds the body sends a telegram to the Museum informing it of what he has found. The Museum sends one back saying whether or not it wants the body. If it does need it, somebody from the Museum goes down to deal with the carcase: if it is not needed, the coastguard arranges for its disposal.
§ In most cases to-day the communication comes by telephone, which is much quicker; but in order to see that the machinery was working satisfactorily I took a file out of the Museum's files at random and picked out of it the first five telegrams, in sequence, dealing with royal fish. I noted in each case the time when the coastguard sent the telegram off and the time when the reply was sent. They were: 10.40, 14.00 hours; 06.06, 10.15; 10.42, 14.30; 16.30, 09.15 the following morning; 12.00, 14.00. That is an interval of between two and four hours, save for the overnight case, and for such cases, as for carcases which arrive at weekends and on bank holidays, special arrangements are made.
§ On these occasions the officer responsible is contacted at his home, and if he is not obtainable a special "wire" is sent saying, "Destroy immediately", so that no public health difficulties can arise. If the telegram arrives after dark and the officer is not obtainable—he may be at the cinema, for instance—he is informed first thing the following morning, when work can once more start. And in the case I have quoted the telegram went off at 9 o'clock in the morning. In all cases the coastguards send by post a standard form giving the length, the colour and the like, so that the creature can be identified by the description.
§ Your Lordships will see that the Museum gets a record of every stranding, which adds to our knowledge of the geographical and seasonal distributions of these creatures. But what is just as important is the right to have the body itself, or part of it, for study in a laboratory; and over the years, 1948 to 1966 (the last one for which returns were made), out of 501 carcases no fewer than 121 were needed, either the whole body or part of the body, for research purposes—very nearly one-quarter of the 1423 total. What makes this machinery so effective is that the man who sends the message is in many cases the man who makes the arrangements for the disposal of the carcase if it is not required. He knows that the Museum has the right to the body, and can act accordingly, and both operations are centrally controlled by a Government Department.
§ I hope your Lordships will see that the proposal to abolish this machinery is not just "the repeal of obsolete and unnecessary enactments", because what is at stake is the destruction of a unique and efficient piece of machinery by means of which the Museum has been able to add enormously to scientific knowledge and to the scientific reputation of this country throughout the whole world. What the Board of Trade and the Museum between them have been able to do is to adapt a mediæval Statute to modern needs. A Statute which was originally intended to meet the perhaps rather selfish demands of the Crown now provides for the scientific needs of one of the largest and more important of our scientific research institutes.
§ The Trustees of that institute, the Trustees of the Natural History Museum, are satisfied that the maintenance of existing machinery is essential if cetacean research is to continue as satisfactorily as it has in the past. I would qualify that by saying that if it is not exactly the existing machinery then at least it should be machinery which gives a single central body a right to the carcase, and the duty of disposing of it if it is not required, and of reporting to the Museum and sending the carcases there if required.
§ So far as the Museum is concerned, it is of little moment whether that body is the Crown, the Central Government of the Museum itself, so long as the Museum can have the assistance of the Board of Trade, such as has been offered to the Crown. We are informed, however, that legally it must be the Crown; and your Lordships may remember that I reminded the House on Second Reading of the analogy of treasure trove, through which valuable antiquities can be retained for national collections by right of the Crown. I have to-day presented for First Reading a Bill to vest all meteorites in the Crown in order that these, too, can be retained in the national collections for 1424 scientific purposes. I am obviously not capable of arguing between prerogative rights and vesting in the Crown, but one or the other seems to us to be essential if we are to keep up with the scientific research for which we are responsible: and if, having abolished the prerogative right the noble and learned Lord could move an Amendment vesting in the Crown or in some Government Department the bodies which were previously the right of the Crown, the trustees will be very content.
§ Now since the existing machinery works well it seems a pity to alter it, and the real point at issue between the Trustees and Her Majesty's Government is surely this. The Government wish to repeal a medieval Statute because the reasons which originally led to its being passed no longer obtain. The Trustees wish to keep the Statute because it is still useful—indeed, the Trustees would say that it is still essential to meet the needs of modern scientists; and, so far, no alternative has been suggested.
On Second Reading the noble and learned Lord was twice good enough to suggest that the Museum could be helped—and I quote his words:
to make an important compilation of information about ceLcca".—[OFFICIAL REPORT, 25/1/71, col. 715.]
if the coastguard were to continue to make reports of strandings. Unfortunately, the Museum was not consulted in any way, either by the Law Commission or by the noble and learned Lord's Department, about the Bill, so naturally he could not be fully informed about the effect of it upon the scientific research carried on at the Museum. But I hone I have now made it clear to your Lordships that the compilation of records to which he referred is but a small part of the work done at the Museum, and that the major advances in scientific knowledge have been made by a study of the skulls, skeletons and soft Harts of whales, porpoises and dolphins, for which, of course, control over the bodies of the whales which are cast ashore is essential.
§ None of us, of course, knows how research is going to develop, but the great wreck of seabirds and the death of sea animals which took place last year, not to mention the recent discovery of heavy metals in fishes' bodies, suggest that research into fish-eating mammals is very 1425 likely to be necessary; and, here again, the present machinery, or something of the same nature, will I think be essential. The effect of what the noble and learned Lord said on Second Reading was, I think, "Let us first repeal the Statute and then find out some other machinery to take its place". Surely that is putting the cart before the horse. I think it must be up to him to prove that the Statute that he wishes to destroy is working badly and to prove that that which he proposes to put in its place will work better; because I must confess that it seems to me clear silliness to destroy something which is working well just for the sake of destroying it, with no clear knowledge of what is to be put in its place and against the advice of those responsible for the research institute concerned.
§ I hope that most noble Lords will think likewise and I shall ask them to support my Amendment. There is one last point. This is not, I think, a political matter, but there seems to be some doubt whether the Government look upon it as a matter of confidence or not. I hope that in his reply the noble and learned Lord will be able to tell us whether we are to have a free vote on this matter or not. I beg to move.
§ 6.32 p.m.
§ THE LORD CHANCELLOR
I thought it might be for the convenience of the Committee if I replied to the noble Earl, because it seems to me that the whole of this Amendment is based upon a complete misconception. I am sure that the Committee was entranced by his description, both of the work which the Natural History Museum does in respect of the skulls and tissues of the various cetacea which are stranded on our coasts and upon the valuable collection of information which the Museum has acquired and is acquiring over a period of years. And if there were the smallest grounds for the belief that this would be brought to an end by what is now proposed in this modest law reform Bill, I suppose that there is hardly a Member of your Lordships' House, and certainly not a member of Her Majesty's Government, who would not wish to exclude "whales"—whatever that word may mean, and I shall come to that later—from the purview of the Bill. But that is not the case.
1426 My noble friend keeps on referring to the "machinery" and suggests that it is a pity to abolish it, and that to abolish it without putting anything in its place is, as he described it, putting the cart before the horse. But this Bill does not touch the machinery. It has nothing to do with it except in an historical sense which I will explain; it has nothing to do with the machinery at all. The assurance that I sought to give to my noble friend on Second Reading and which I do not think he can have fully assimilated is that the machinery will go on, whether his Amendment is accepted or rejected. It has no logical relationship to what happens.
Having said that, may I now seek to justify what I have said by what I hope will be a logical argument. This Bill is concerned solely with the abolition of a wholly useless piece of legal lumber from our Statute Book, and it will have no effect at all on the existing machinery. There can be no doubt whatever in law that the existing machinery—although historically no doubt it arose out of the fact that the Queen in a personal capacity had the right to the carcases of whales and sturgeons—is not in any way based on that. It is a purely administrative arrangement. It has no legal basis in the Prerogative or in the Statute. It could be stopped to-morrow by the Government (I hasten to say that it will not in fact be stopped) if the Government so decided, without altering the Prerogative in the least. It could be stopped by a mere administrative order, whether the Amendment is carried or rejected, and it could, if the Government so decided—and again let me hasten to add that the Government have no such thought in mind—be handed over to each of the local authorities to carry out. It could be given to any individual private citizen, if the Government so wanted, whether the Amendment is carried or not.
There is no legal basis in the Prerogative for what is now being done It is an administrative arrangement which my noble friend is utterly mistaken in thinking could be affected either in one way or another by what is proposed in this law reform Bill. Conversely, I must say, having given the assurance which the Government have given that it will go 1427 on happening under the existing arrangements until another set of arrangements is made, satisfactory to the Natural History Museum, I wholly fail to understand how my noble friend thinks that by preserving a pure piece of archæological lumber on the Statute Book he can possibly serve the interests of science, either now or in the future.
May I go a little further to explain the situation? The Queen has the prerogative of what are called Royal fish. She has over the centuries given away that prerogative already in respect of 7½ per cent. of the coastline of England and Wales. In other words, the prerogative does not exist on 7½ per cent. of the coastline of England and Wales—the notable example, apart from the Duchy of Cornwall, which I do not think I have included in the 7½ per cent., being to the Warden of the Cinque Ports. There are various stretches of the sea coast where the prerogative is already given away, but the machinery operates there just the same. It is a purely administrative arrangement. The reason is that in the ordinary course of events nobody but the Natural History Museum wants whales. On the contrary, they are only too glad to get rid of them. The problem is not keeping them but getting rid of them; and when the Natural History Museum want them they get them pretty quickly. The fact is that my noble friend gets his information and gets his carcases whether they belong to the Queen or not.
If one then turns to Scotland—because owing to its situation (it is rather North of the benighted part of the United Kingdom in which we live) it gets more than its share of whales, whatever whales may be (and I will come to that)—one discovers that very few of the whales are Royal fish at all. As I explained on Second Reading, I thought clearly, the criterion of a Royal fish in Scotland is not the same as a Royal fish in England. In Scotland, so the Scots lawyers tell me—and there is a great encyclopædia of Scottish law by an author known as Erskine which is generally treated as authoritative—in order to be a Royal fish the object has to be of such a size that it can only be moved by a wain drawn by six oxen. I do not know whether my noble friend wants to keep in Scottish law an absurd provision of that kind. 1428 But I should like him to explain to the Committee, if he is really serious, why he thinks he gets all the information relating to porpoises—because porpoises do not require a wain with six oxen to take them away. For this purpose a porpoise is a whale; just as for the purposes of common law a whale is a fish.
This is an Amendment about porpoises, largely. If one takes the strandings—and I am now quoting from the strandings over the last 50 years given in The Times the other day—631 out of 1,547 were common porpoises. The bottle-nosed dolphin, which equally does not require a wain with six oxen to draw it away, was the next largest, with 185. The common dolphin is about the same, 135, and the lesser rorqual 106, out of the 1,547 strandings over the 50 years. I could give the figures for Scotland.
§ LORD SHACKLETON
May I ask the noble and learned Lord whether he thinks that the lesser rorqual is the same size as the porpoise?
§ THE LORD CHANCELLOR
No, my Lords, I do not. I was about to say, if the noble Lord had given me a chance, that I doubt whether it would take a wain with six oxen to take it away. I do not honestly know—otherwise I would tell the Committee—exactly how big an object has to be before it requires six oxen and a wain to take it away. All I can say is that I do not know for certain whether or not the lesser rorqual is such a size. I rather fancy it is not, but I never intended to suggest, and do not suggest, that it is the size of the common porpoise. All I am saying (this is the argument I am presenting to the Committee; I do hope that they are following me) is that unless my noble friend can seriously suggest that it is necessary to the Natural History Museum that there should be a provision in our extraordinary legal system whereby the carcases of whales if of more than the requisite size should remain in the property of Her Majesty, but lesser whales should not; and why should the law of Scotland be completely different from the law of England? I am quite unable to accept that these administrative arrangements which cover the whole shooting match do not operate quite well without this mediaeval lumber.
One could carry this much further, of course. The fact of the matter is that 1429 the prerogative, as it exists, has nothing to do with the administrative arrangement, except a purely historic connection. Let me add that nobody knows what the prerogative is; nobody has bothered to find out, because for very many centuries nobody wanted these carcases except the Natural History Museum. We cannot, of course, guard each one; but fortunately no one takes them away, and no one will take them away. We only tell the Natural History Museum where they can get them if they want. Nobody knows the extent of the Royal Prerogative. I should have thought that the probability is that most of the things treated as Royal fish for the purposes probably are not. My noble friend spoke as if we were repealing a Statute. Well, we are repealing a Statute, of course—the Statute, or bits of it, De Prerogativo Regis of Edward II, which contains the mysterious words "wallenas et sturgiones".
Even if we did not repeal the Statute, the Common Law gives Royal fish, whatever they may be, to the Queen; and nobody knows what Royal fish are. It is said by Sir Matthew Hale in his treatise De Jure Maris that when he examined the extent of this prerogative he came to the conclusion that it had been extended to creatures other than whales and sturgeon; for instance, to porpoise, and to grampise, or great fish. What grampise are, again I do not know, although I think I detect the Norman French grand poisson meaning a big fish. I cannot tell the Committee what is contained in this legal rubbish—
§ LORD SHACKLETON
May I help the noble and learned Lord by telling him that a grampus is an orca-gladiator and I hope that he does not meet one?
§ THE LORD CHANCELLOR
The trouble is that the noble Lord is confusing a grampise with a grampus—you see what sort of a muddle we get into if we try to preserve this nonsense. It is nothing to do with a grampus; it is a grampise. From Moore's History of the Foreshore it is, I think, considered that a grampise means nothing more than a grandis piscis, or a big fish.
In mediaeval language dolphins and porpoises were not distinguished, any more than whales were distinguished from fish. It is, therefore, totally uncertain 1430 whether, if the Loch Ness monster or its maritime equivalent were suddenly washed up on the coast of Scotland or England, my noble friend would be entitled. The kind of muddle we are in when we are talking about this nonsense can well be seen by a series of events in the reign of Henry III when there was a tremendous controversy between the King's bailiff and the Prior of St. Swithen's de quodam pisce regio claimed by each without any distinct name. The upshot was that the Prior procured the King's bailiff to be excommunicated and the King commanded his absolution. This is the kind of thing we have to continue, if my noble friend is serious, in order to preserve the legitimate machinery of the Natural History Museum. I wish to be excessively polite, but I remain sceptical on this point. I do not believe it is so necessary. All I have said is that we will keep the present machinery on until anybody can think of anything better; and it has to be satisfactory to the Natural History Museum.
I sincerely put to the Committee one rather serious point of principle. If we are going to be serious about law reform—and I am extremely serious about law reform—we really must not go delving about in an amateur kind of way in the muddy waters of mediaeval law to try to find a conceivably relevant purpose for it. If we want to preserve rights by legal Statutes, let us not put Latin Amendments down on the Order Paper but let us initiate a modern up-to-date piece of legislation. In the meantime, let me say at once that my noble friend can rest entirely reassured. We do not intend to destroy the existing machinery, and we do intend to consult the Natural History Museum about any changes in it; and not substitute another scheme until we are all satisfied that it is a better one. But please do not let us confuse this with medieval legal lumber, because it really has no basis in truth at all.
Is it not true that none of these animals mentioned is a fish at all, and that they are all mammals?
§ THE LORD CHANCELLOR
My noble friend is perfectly right. I endeavoured to deal with this point on Second Reading. But if I may elaborate for a moment, if the Committee will forgive me, the reason that whales are Royal 1431 fish is not simply the fact that in St. Matthew's Gospel it is there impliedly stated, but because the law grew up before Linnaeus. Now Linnaeus categorised animals or living things by their structure and their nature. The medieval people who founded the law did it by where they live; and as the whale and the porpoise live in the sea they were counted as fish, and you might eat them on Fridays. There was the great argument about ducks and geese for the very same reason. You might eat ducks on a Friday. Mediæval theologians maintained that it was right to eat ducks and geese on Friday because they were aquatic creatures and therefore fish, and therefore not meat. My noble friend is perfectly right in saying that all this is nonsense. We all know now that the whale is a mammal and we had better get down to the 20th century and not go thrashing about in the 14th century.
§ LORD DONALDSON OF KINGSBRIDGE
The noble and learned Lord has used the well-known legal technique of working us up into a terrific confusion and then saying how confused we are. The problem is really extremely simple for laymen like us. I have no more knowledge of the importance of this particular issue scientifically than the noble and learned Lord on the Woolsack. We neither of us claim knowledge on this. But we have a very simple situation. We have a great research institute which contains among its managing directors no fewer than five members of the Royal Society. On the other hand, we have the Law Commission, admirable body as it is; we have the Lord Chancellor's Department, which has many of my friends in it, and we have the Lord Chancellor himself. One side is perfectly certain that it is going to lose something very important; the other side says it is not. That is the issue. Nothing else that your Lordships have heard has any connection with the problem. I am very surprised at the position which the noble and learned Lord has taken up because it is a position which shows for me, who have known him for a very long time, that he has an unexpected passion for tidiness.
This is simply a lawyer's desire to do the thing as a whole instead of making a small exception. There is no reason in 1432 logic for this. There is, however, a sort of holist reason of tidiness. This is not a quality I have ever associated with the noble and learned Lord, and it puzzles me. It also puzzles me to find that here he is acting as a cog in the machine. This is a most unexpected position in which to find him. The Law Commission have started something, the Lord Chancellor's Department have worked it out and he comes here as a cog. We have often heard him described as a March wind, as a tornado, as a dark cloud no bigger than a man's hand at the edge of the horizon, but I never thought he could be described as a sort of nut and bolt in a vast legal Hoover. Somehow I cannot see this as being relevant.
My last complaint is that he has wantonly neglected the "old boy" net and the glorious country houses. They could hardly be introduced to-day, but as they are here it is absurd not to live in them or to use the "old boy" net. The noble and learned Lord and I were privileged to grow up and be educated under a very distinguished natural historian who, until last year, was curator of the Natural History Museum. One would have thought that the noble and learned Lord would at least have rung up his old friend and asked, "Does this really matter?" I did so this morning, but unfortunately he was taking the dog for a walk so I have not the answer. But I am assured that he takes a very serious view.
My Lords, do not be blinded by the confusion into which the noble and learned Lord has got us. There is no confusion. It is a perfectly straight issue. Five Fellows of the Royal Society, backed up by the whole background of the Natural History Museum, including Fraser, who actually does the work, think it would be a very serious thing if this were altered. A lot of lawyers do not. Which side are your Lordships on? I know which side I am on.
§ LORD HURCOMB
I wonder whether the noble and learned Lord would have patience with me for a moment to put the real point of the Museum's anxiety in this matter. I agree, of course, that we do not want the Statute Book 1433 cluttered up with mediæval acts about cetacea and I entirely agree that the machinery for reporting to the Museum, which has worked perfectly smoothly and satisfactorily, could well be continued, and from what the noble and learned Lord has said, so far as the Government is concerned it may well be continued. But that is not the real point.
What the Museum is afraid of is that if there is no property in the case of washed-up cetacea, the Museum will not receive the same amount of material as they did in the past. The ordinary man and woman on the beach probably labours under the same delusion as the Norman and Angevin Sovereigns, and apparently also the common lawyers, that these creatures are fish. It is not realised that they are a very important, indeed the largest group, of British mammals. Their scientific importance is not diminished because, so far as the Museum's collection is concerned, it may be thought that there is not much more to discover, largely due to the machinery which has prevailed over the last sixty years and partly also because the Museum has been fortunate in having a number of distinguished zoologists successively interested in this group. The Museum has an unrivalled collection of specimens and dissections. But looking to the future, as the noble Earl, Lord Cranbrook, has said, we still need to know what is happening to the inhabitants of the sea and to creatures living on fish and on plankton and every month nowadays some new problems arise as to the poisoning or killing of some particular creature.
I suggest that the protection of these washed-up cetacea and the Museum's right to have a specimen or part of a creature—and often they are content with only a part which they want to dissect—is something of real importance. They are not going to want whales which need to be drawn by six wains or a whole lorry, but they do want to know before one is destroyed just what its interest may be. They are afraid, and I think rightly afraid, that if these creatures do not belong to anyone, when they are washed up they will get stolen or mutilated in some way. I agree with the noble and learned Lord that in most cases the real problem is how to get rid of the beastly thing, but a scientist ought to be sure 1434 that he is having reported to him all the possible material; because it is important from the purely scientific point of view and also from the current research point of view, to which the noble Earl referred, to be able to know what has been happening to these creatures before they are washed up dead.
It seems to me that the simple thing to do is to keep this obsolete machinery on the Statute Book for a little longer, until some satisfactory answer to the main problem—in whom should the property of washed-up cetacea vest—has been satisfactorily solved. Until that has been done, why not leave well alone? I am sure that the ingenuity of the lawyers and scientists, and of the constitutional people who control the functions of departments, can solve this problem if they are given a little time to do so, but we do not want a lacuna in the protection of this carefully protected and preserved species, as these important mammals can still teach us a great deal, not of merely theoretical scientific interest but also of how to protect human life and the lives of other creatures which live in the ocean.
We have enjoyed two not altogether serious speeches and perhaps I should suggest that this subject should be taken more seriously. This is a very real problem, and perhaps if the Museum had been consulted earlier much of the argument which has now arisen would have been unnecessary. I suggest that until a solution is found to the problem of not allowing these creatures, when they are washed up, to be left abandoned with no one having any rights in them, we should continue the excellent machinery, which, as the noble and learned Lord has said, has nothing to do with the Royal Prerogative, and which may cover the majority of cases but will not protect absolutely and successfully the whole of the available material, which I venture to think may become more and more important.
§ 7.0 p.m.
THE EARL OF MANSFIELD
The noble and learned Lord has diverted your Lordships with a speech of his usual brilliance, but I am afraid that so far as casting a proper light on what is going to happen to these Royal whales in future, his speech was rather less of a searchlight than a brutum fulmen. 1435 For, to change the metaphor, the various amusing arguments he has used are really rather like theFlowers that bloom in the spring, tra-la-la":they have nothing to do with the case. What we really want to know is in whom will the possession of these royal fish, thrown up on the coast or caught in nets, really vest. Up to date the coastguards have been reporting on them because it is their duty to report on royal fish. But now to whom does a dolphin floating in the sea belong? Is it flotsam? And when it is cast up on the beach is it jetsom? If it is caught in a salmon net or in a trawl does it belong to the trawl owner or the salmon-net owner, or to whom does it belong? It seems to me that there is a considerable danger that a great many of these valuable specimens will no longer be available for use by the museums. Anybody can take them for their own purposes and cut them up for manure or what they like.
I would add that it is particularly important at the present time that a study should be made of the skull of the dolphin, because, as some of your Lordships will know, over the last few years it has been discovered, rather to the surprise of many zoologists, that the dolphin has probably the best brain of any living creature after man. It is far more intelligent than the dog, the elephant or even the primate. It is obvious that raw material in the shape of the skulls and other organs of these dolphins is urgently necessary in order to enable our scientists to continue their investigations, which may eventually lead to a breakthrough in the study of evolution. For that reason, I feel that the noble and learned Lord, for all his brilliance, has not really left the position quite as clear as we should desire.
§ LORD CONESFORD
I shall detain your Lordships for only a few minutes. I should not like it to be thought that there was no lawyer supporting this Amendment. I agree with my noble and learned friend the Lord Chancellor on the case for law reform and treating it seriously, and I enjoyed as much as the rest of the Committee his brilliant and amusing speech. But there are two points that strike me emphatically. The first is the question of consultation. I have 1436 a great respect for the Law Commission, but on this particular point I cannot imagine why they did not consult the Natural History Museum. As we know from every speech that has been made, the Natural History Museum, rightly or wrongly, are very much interested in this subject, and I know of no reason why they should not have been consulted.
The second point, which was well brought out by the noble Lord, Lord Hurcomb, is the question of protection, and the possible relevance of ownership to that protection. I should very much like some of these creatures to have the protection that is involved in being the property of Her Majesty. My noble and learned friend the Lord Chancellor mentioned in passing the Loch Ness Monster. If the Loch Ness Monster either is or arguably is within the protection afforded by the prerogative, I am strongly in favour of the Loch Ness Monster's continuing to enjoy that protection. I cannot imagine a more obvious disaster than the Loch Ness Monster's being subjected to some outrage by some silly person who had not hitherto believed in its existence and, when he found it, thought it was a good thing to hurt it.
For those reasons—because there has been admittedly no consultation with the Natural History Museum, the distinguished Trustees of which are admittedly very much concerned, and because the existing law provides protection for valuable species and that protection can be valuable for the reasons given by the noble Lord, Lord Hurcomb—I hope that this Amendment will be considered most seriously; and if the matter cannot be settled amicably but has to go to a Division, I propose to support those who favour the Amendment.
§ LORD SHACKLETON
What a pleasure it is to have the noble and learned Lord back among us! In his speech he swam vigorously, thrashed around, spouted like a good whale but not like a grampus—I am sorry that I missed that joke, but the noble Lord, Lord Hurcomb, intercepted me just when the noble and learned Lord was making his main point. But I am bound to say that on two or three aspects of his speech I am not satisfied. First of all, I think his little lecture on taxonomy, and the particular role of Lineas in deciding when a fish was a fish, was somewhat 1437 oversimplified, and I am not sure that the noble and learned Lord does know what a rorqual is. He will not be eaten by a rorqual: its teeth are very small.
§ THE LORD CHANCELLOR
I never said that I knew what a rorqual was. All I said was that I doubted whether it took a wain and six oxen to carry it away when it was dead.
§ LORD SHACKLETON
This just shows how wrong the noble and learned Lord is. I am not sure which kind of rorqual he was talking about, but it would take a large number of oxen to pull a rorqual away.
§ LORD SHACKLETON
The noble and learned Lord is still not sure of his ground. Having revealed some uncertainty in this matter, it gives us slight ground to doubt the legal expertise, which he rightly says does not necessarily exist among Fellows of the Royal Society. I am not sure whether there has been a proper biological mating between the two branches of these professions.
The noble and learned Lord suggested that we should get rid of what he several times delighted to call mediæval legal lumber. I do not know why swans are not mediæval legal lumber while whales continue to be, but there is no doubt a good reason. But my noble and learned friend Lord Stow Hill, who is also a lawyer (he apologises for not being here, but he had to go: I offered to take his place with eagerness, because the noble Earl, Lord Cranbrook, and I have been allies for a long while) told me that he was not yet satisfied by the noble and learned Lord, and I think that many other noble Lords are not satisfied.
The point at issue really is, if this particular right—which the noble and learned Lord says has nothing to do with the question of whether the British Museum get their whales—is removed, by what particular administrative authority will it be possible for the British Museum to get their cetacae, which is what I think the noble and learned Lord prefers to call them? Is this an undertaking that the Minister will continue to order coast-guards to fulfil this role? I thought that the noble Earl, Lord Mansfield, raised 1438 some difficult questions of ownership. Therefore, unless we get a more satisfactory reply I am inclined to leave this bit of law in existence. Indeed, I think it may be rather satisfactory to find something as useful as this in a measure as ancient as the one that we are talking about. Therefore, I would certainly be willing to support the noble Earl.
It may well be that the noble and learned Lord will be able to give us slightly more effective assurances as to how the administrative machinery will work, and under what authority it will work. Unless he can do so, I suggest to the noble Earl that he takes the matter to a Division; or, at any rate, perhaps the noble and learned Lord will go away and think again and produce an explanation which is less littered with extremely interesting mediaeval Latin, though perhaps lacking in biological Latin. It may well be that the matter will have to be pursued on the Report stage. I am certainly prepared to recommend to any noble Lord who thinks like me to support the noble Earl.
§ 7.11 p.m.
§ THE LORD CHANCELLOR
I never like to be unreasonable, but I must frankly reply to this debate that I am a little disappointed in the speeches to which have listened. The noble Lord, Lord Donaldson of Kingsbridge, began by saying that it was unlike me to be tidy. I think there was truth in that criticism. But here I am not being tidy; I am trying to be rational. I believe that I am allergic to nonsense when I see it. What is manifest nonsense to me is to believe that the interests of the Natural History Museum are impaired, when the existing machinery bears no foundation on this curious morass into which noble Lords have shown themselves only too eager to plunge, but is wholly independent of it, and will continue whatever the fate of the noble Lord's Amendment. If anybody thinks that the mere dubbed property in the Crown (not in porpoises in Scotland, but in larger whales in Scotland; but none, I think, in the Isle of Man or Guernsey or Jersey, to some of which I think the machinery applies) is of any practical value in salving these unwanted carcases—
§ LORD SHACKLETON
May I interrupt the noble and learned Lord? He 1439 says that he "thinks" it applies. It would be helpful to know where this machinery applies where this particular prerogative is not operating.
§ THE LORD CHANCELLOR
I think I am right, but this is wholly outside my own Department. I think it applies to the British Isles; but there are so many islands in the British Isles that I am not sure that the watchful eyes of the Coastguard Service apply to them all. The only point I am seeking to make to the Committee—which is, after all, dealing with a law reform Bill—is that the mere property, if there is a property which is highly doubtful and which varies according to the part of the British Isles in which the thing is, has any kind of protection from the Natural History Museum, all I can say is that he is suffering from an illusion. The real trouble—
§ THE LORD CHANCELLOR
No; allow me to proceed, and I will give way to the noble Lord in a moment. The real truth is that there is no relationship between this prerogative which noble Lords wish to preserve and the machinery which will be preserved, whatever comes of this Amendment. There is no relationship at all. I tried to illustrate it by a number of absurd anomalies. If I had carried out more research I could have given as many more. For instance, even in England, where the prerogative is at its widest, I think that 7½ per cent. of the coastline has been given to somebody else—and nobody knows quite whom—yet the machinery, which is relatively modern, operates just as well.
I have not forgotten my promise to the noble Lord, but it is a little difficult to find a commercial test, which I will do in a moment. May I just pursue this question, for instance, of consultation? The basic reason for the failure of the Law Commission to consult is that they have not the remotest idea that anybody would think this had the faintest bearing on what they were proposing. They did it out of sheer innocence, innocence which until a fortnight ago I myself shared. But what I am seeking to assure the Committee is that they were dead right.
1440 The Natural History Museum depends for its continued information and carcases upon my right honourable friend the Secretary of State for the Environment, who operates quite independently of the prerogative on all porpoises, whether in England or Scotland, or rorquals in either place, and wherever the Coastguard Service can inform the authorities of the existence of a stranded carcase, alive or dead. If the noble Lord thinks that a better set of machinery can be found, all I say is that I have given the assurance, on behalf of the Government, that the present machinery will be kept in being because it does not depend on the prerogative and my right honourable friend (though not the Lord Chancellor's Department, please) will be happy to discuss it with the Natural History Museum.
The Natural History Museum and I have been perfectly alerted to this problem for the past fortnight, and I have not been the least encouraged by what the Trustees have done. Instead of co-operating in a simple method of law reform and accepting a Government promise, which is given in good faith, they have continued to pursue what I can only describe as a purely obscurantist series of assertions which have no relation to fact at all. Although I am still going to co-operate with them so far as I can—and so will my right honourable friend—I am not encouraged by their attempts constantly to teach me a little more instead of my learning innocently at their hands all the science that they care to impart.
§ LORD BEAUMONT OF WHITLEY
I accept the point of the noble and learned Lord that the machinery does not depend on the prerogative. It is quite clear to me that what he is saying, that the law is a nonsense as it stands, is true. But is it not also true that the machinery depends on the belief of a great many people around Britain that it does depend on the prerogative, and that the belief that whales belong to the Queen helps to protect them and induce people to report them.
§ THE LORD CHANCELLOR
Not at all. It depends upon the instructions which are given to the Coastguard and the Receiver of Wrecks, which is the authority that co-ordinates the information about whales. I have no reason whatever 1441 to think that the inhabitants of Scotland believe that the porpoises belong to the Queen. They do not in fact do so and so far as I know they never have done so. What kind of protection is provided on the Strands of Kent, where all the carcases belong to the Lord Warden of the Cinque Ports, the noble Lord must ask the Lord Warden of the Cinque Ports, who is also a Member of your Lordships' House. But the machinery works there perfectly well, not because people think the carcases belong to the Queen—because I have no doubt that the lieges of the Cinque Ports know only too well that they must look to the noble Lord, Lord Menzies, or whoever it is.
Is there any right that matters of the Queen in regard to swans? What is the distinction if we must hereby abolish all Her Majesty's rights to royal fish, including these curious kinds of non-fish? Why do we have to keep her prerogative right for swans?
§ THE LORD CHANCELLOR
I explained this point to the House, at considerable length, on the Second Reading, and if my noble friend would like to refer to my speech on that occasion he will see it. There are two simple reasons. The first is that swans, curiously enough—although again I did not know it before—are often given as presents to foreigners by the Queen as one of her own swans, and therefore the right has a contemporary use. The second reason is that on the River Thames the swan-upping ceremony involves the rights of at least two City Companies, and therefore cannot be dealt with simply by abolishing the Royal prerogative. All three bodies value their current use of swans. Therefore, the prerogative in regard to swans cannot be said to be wholly obsolete, as the prerogative in relation to fish can be said to be.
§ THE EARL OF CRANBROOK
I have much enjoyed this debate this evening not least in the closing stages when the noble and learned Lord suggested that I was even more obscurantist than he is himself, something which I should have thought was utterly impossible, and I am going to tell my wife that she is probably more correct than I had ever thought her in the past. The noble and learned Lord has quite consistently evaded the main point at issue throughout. I 1442 may have defined or used the word "machinery" to include more than perhaps he thinks it includes. But the machinery to which I was referring was the right of the Crown to be in possession of the whales when they come ashore. That, I believe all the noble Lords who have spoken think, with the Natural History Museum, is essential; and the noble and learned Lord has never once answered that point all the way through. But he has gone off on to one or two tangents, including pointing out, very rightly, that the law as it is applied to Scotland is not the same as the law as it is applied to England. He uses the old-fashioned term of the oxen and the wain; the modern one, which is used by the coastguards and others up there, is exceeding 26 feet from the tail to the snout.
§ THE LORD CHANCELLOR
Does that not show my noble friend, if anything would, that that particular machinery has nothing whatever to do with the law? The law says "a wain with six oxen", not "26 feet from the snout to the tail".
§ THE EARL OF CRANBROOK
I am afraid that, whatever the law says, that is the machinery which is now used in Scotland. And the remarkably interesting thing about Scotland is that the number of royal fish reported was 31, as opposed to 23 in England and Wales, over the years 1958 to 1966—that is to say, a larger number of royal fish in Scotland than in England, as one would expect, since the coastline of Scotland is about twice as long as is that of England and Wales.
When we get back to the non-royal fish who will get on the wain, the numbers are almost exactly reversed. We have 132 from Scotland; 232 from England—almost double the number from half the coastline. It is quite clear that the right in royal fish makes a tremendous difference in the numbers which are reported to the Museum and which enable us to do work that we could not otherwise do. He referred also to the fact, which is correct, that there is a large number of individuals and statutory bodies and others—the Prince of Wales in the right of the Duchy of Cornwall; the Lord Warden of the Cinque Ports; the City of Rochester; and there is somebody who lives at the Wapentake of Holderness in Yorkshire—all of whom 1443 have the same rights in these fish. But it is the mere fact that they have the rights of possession of them, of which they are exceedingly jealous, that the Museum has to take into account every time. They hang on to these fish tenaciously, and enable us to get them, when otherwise they might be taken away on a wain or what-not by some other person who had no right in them.
This is an important thing in that part—I cannot recollect whether the noble and learned Lord said it was 20 per cent.—of the coastline in England. It is exceedingly
§ Resolved in the affirmative, and Amendment agreed to accordingly.
Page 1, line 7, after ("including") insert ("whales or")—(The Earl of Cranbrook.)
§ On Question, Whether Clause 1, as amended, shall stand part of the Bill?1444
§ useful that these people use their right which they derive from the prerogative, and the prerogative I think is as useful to us. The noble and learned Lord has not attempted to meet the points made by the noble Lord, Lord Hurcomb, or any of the rest of us, and I hope that in the Division your Lordships will support me.
§ 7.24 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents 53, Not-Contents 30.1443
|Amherst of Hackney, L.||Emmet of Amberley, Bs.||Phillips, Bs.|
|Amulree, L.||Faringdon, L.||Platt, L.|
|Ardwick, L.||Foot, L.||Rockley, L.|
|Auckland, L.||George-Brown, L.||Ruthven of Freeland, Ly.|
|Audley, Bs.||Gray, L.||St. Just, L.|
|Beswick, L.||Hives, L.||Sempill, Ly.|
|Birk, Bs.||Hood, V.||Shackleton, L.|
|Boothby, L.||Hurcomb, L.||Shepherd, L.|
|Burntwood, L.||Hylton-Foster, Bs.||Sherfied, L.|
|Collison, L.||Inglewood, L.||Skelmersdale, L.|
|Colville of Culross, V.||Janner, L.||Somers, L.|
|Conesford, L.||Kilbracken, L.||Strabolgi, L.|
|Craigavon, V.||Kinnoull, E.|
|Cranbrook, E. [Teller.]||Llewelyn-Davies of Hastoe, Bs.||Teviot, L.|
|Davies of Leek, L.||Mansfield, E.||Vivian, L.|
|Delacourt-Smith, L.||Milner of Leeds, L.||Wakefield of Kendal, L.|
|Diamond, L.||Monk Bretton, L.||White, Bs.|
|Donaldson of Kingsbridge, L. [Teller.]||Northchurch, Bs.||Wynne-Jones, L.|
|Aberdare, L.||Falkland, V.||Milverton, L.|
|Amory, V.||Ferriers, E.||Mowbray and Stourton, L.|
|Beaumont of Whitley, L.||Goschen, V. [Teller.]||Rankeillour, L.|
|Belstead, L.||Grenfell, L.||St. Aldwyn, E.|
|Berkeley, Bs.||Grimston of Westbury, L.||Strange of Knockin, Bs.|
|Brougham and Vaux, L.||Hailsham of St. Marylebone, L. (Lord Chancellor.)||Tenby, V.|
|Carrington, L.||Teynham, L.|
|Craigmyle, L.||Ilford, L.||Waldergrave, E.|
|Denham, L. [Teller.]||Jellicoe, E. (L. Privy Seal.)||Windlesham, L.|
|Drumalbyn, L.||Lothian, M.||Wolverton, L.|
On Question, Amendment agreed to.
I should like to have cleared up. We see in Clause 1:
The forest law is hereby abrogated, except in so far as it relates to the appointment and functions of verderers.
There are then other references to the forest law, and a Schedule of enactments to be repealed, starting with the year 1297. What worries me is whether any part of Magna Charta is being swept away, together with the mediæval "legal lumber" to which the noble and learned Lord the Lord Chancellor has referred It may well be that there are parts of Magna Charta which deserve to be swept
away, but if that is so I thank it is right and proper that it should be made clear to the people of this country what in fact we are doing.
§ Admittedly Magna Charta was dated 1215 (I think) but so far as I can find out from quickly consulting a work of reference, the Charter of King Edward I, dated 1297, referred to at the beginning of the Schedule of enactments to be repealed, included a reprint of Magna Charta. Therefore, I feel that my question is pertinent and I should like an answer to it, not only for my own curiosity but because I think we should give information on this point to a wider circle.
§ THE LORD CHANCELLOR
I will do my best. Magna Charta, by which I mean the original Charter of John, has not been on the Statute Book for the last 700 years. What is on the Statute Book are the various reaffirmations of it by subsequent Sovereigns, and so far as I know the answer to my noble friend's question is to be seen in the second item on the Schedule. The relevant Statute is 25 Edward I (Confirmation of the Charters) Act, where the words "Charter of the Forest" are repealed and no other part is repealed—the Charter of the Forest representing what I sought to describe in Second Reading. So far as I know there is nothing else of the surviving clauses of Magna Charta which would be affected by this particular Bill.
§ LORD SHACKLETON
May I ask the noble and learned Lord one question? My noble friend Lord Stow Hill had intended to query some of the wording in subsection (3). I do not ask the noble and learned Lord the Lord Chancellor to construe it, because my complaint is that although no doubt it is susceptible of construction it might be drafted a little more intelligently. I am not querying the use of the words "fence month" or "winter heyning", which have meanings to those who live in such parts of the world as the New Forest, but the wording does seem to be a little like modern "legal lumber".
§ THE LORD CHANCELLOR
Of course I will look at it again if the noble Lord, Lord Stow Hill, wants me to do so, but I think this is just clearing the ground, and clearing the ground with the appropriate 1446 words. I do not think we shall ever read it again if we pass it. We shall read it several times if we do not.
§ Clause 1, as amended, agreed to.
§ Clause 2 agreed to.
§ Schedule [Enactments Repealed]:
Page 3, column 3, leave out lines 17 and 18 and insert ("In chapter 13 the words 'et sturgiones.'")—(The Earl of Cranbrook.)
§ On Question, Amendment agreed to.
§ 7.40 p.m.
LORD MONTAGU OF BEAULIEU moved Amendment No. 4:
Page 9, leave out lines 37 to 39.
§ The noble Lord said: In a Bill such as this which deals with forest laws, it is not unnatural that there will be laws in the Schedule which concern the New Forest, legislation which is complex and multitudinous, and I welcome the fact that so many of the Acts are being taken out. I raised one point on the Second Reading on the urging of our New Forest Rural District and Ringwood and Fordingbridge Councils, who expressed concern that public works of importance to the Forest, such as sewage works and so on, would be unreasonably delayed owing to the fact that they will no longer have powers to get land without common rights. I believe that one of the problems is that when the land was vested in the Forestry Commission they could not exercise their powers, owing to the fact that the ownership is still under the Minister of Agriculture. I do not want to repeat everything I said on Second Reading, and my main object in putting down this Amendment to-day is to give the noble and learned Lord the opportunity to explain a little more the point that is causing concern to the Rural District Councils.
§ THE LORD CHANCELLOR
I endeavoured to help my noble friend on the Second Reading, and I am not sure I can say a great deal more than I said then. The position is that this Act of 1902 which is being repealed by the Schedule is completely inoperative at the present time and has been incapable of being operated since 1945. The Act of 1447 1902 gave the Commissioners of Woods, as I think they were called at that time, certain powers to acquire land. In 1923 those powers were transferred to the Forestry Commissioners. Under Section 4(5) of the Forestry Act 1945 the New Forest was vested in the Minister of Agriculture, but, unfortunately or fortunately, intentionally or unintentionally—and all my researches fail to reveal which of those alternatives is correct—the powers given by the 1902 Act, which were visibly extant in 1945, were not transferred with the New Forest to the Minister of Agriculture. So he has not got them now, and even if the Amendment were passed, like the last Amendment, he would not have them then. He has not got the powers because it would have required a different provision in the Forestry Act 1945 to give him them. So the Act of 1902 is now left in the legal attic without any operation or capability of being operated.
It may or may not be desirable—I really do not know, because it is well outside any Department I have ever operated—that the Minister of Agriculture or his successor should have the power to own land (I forget whether it is for sewerage or graveyard, but for some limited purpose) in the New Forest; but, if he ought to have that power, it will have to be given to him by a new Statute initiated by himself. It cannot be given to him by retaining this spent Statute on the Statute Book. I hope that with that explanation my noble friend will go back to his local authority and explain to them what I have said, and say that he has done a great service to them and to the New Forest by airing the point that the Labour Government of 1945 failed to transfer the powers which previously resided in the Commissioners to their Minister of Agriculture, and that it would require fresh legislation to invest him with such powers. I hope that will satisfy my noble friend. This is yet another illustration to the Committee of the kind of rubbish that exists on the Statute Book and which I am diligently attempting to remove.
§ LORD SHACKLETON
I take it that the noble and learned Lord, having noted the failure of the Labour Government in 1945, is now giving virtually an undertaking to the noble Lord, Lord Montagu 1448 of Beaulieu, to facilitate a Bill to restore those powers, or the appropriate powers. Clearly, the noble and learned Lord and his friends missed their opportunity during the 13 years when they were in office. But since, on the whole, we have enough politics, not of a party kind, in the New Forest, I would hesitate to carry this point too far. None the less, these are matters on which there are very strong feelings and are not to be dealt with lightly.
I am not sure whether the noble Lord, who obviously is anxious to do a service to the New Forest and these particular councils, has succeeded so well as perhaps the noble and learned Lord thinks, because what he really wants to do is to get the matter put right. It seems to me that leaving this provision in the Bill does not achieve very much, but I take it that we shall see the appropriate legislation at an early stage. I am not sure whether it will be Private Bill legislation or Public Bill legislation, but it would be useful to know if the Government would facilitate this.
§ THE LORD CHANCELLOR
I cannot give any undertaking on behalf of my right honourable friend. I do not know on what grounds or for what purpose these powers are required. This is a question of policy. I am concerned only with the Bill, which deals with so many spent Statutes and is getting rid of them because they are spent. If my noble friend would like to get in touch with my right honourable friend, I will use whatever good offices I possess to assist him. I am not able to say now whether the Minister of Agriculture should have the powers or not. It may have been an act of statesmanship on the part of the Labour Government in 1945 to refuse to transfer them. Perhaps it was a part of the business of receding from areas of Government. All I am saying is that it cannot be effected this way, and all I am concerned with now is this Bill and this Amendment.
§ LORD MONTAGU OF BEAULIEU
I would take the opportunity of thanking the noble and learned Lord for his advice and his statement on this matter. I think it has been useful to raise this anomaly. So far as I know, the reason why the district councils are concerned is that when they wish, for instance, to extend a sewage works they encounter great 1449 delay. Last time it took two years to negotiate with the Forestry Commission, and what was desired could only be done by an exchange of land. Obviously it causes concern that vital public works are delayed. I thank the noble and learned Lord for his advice, and hope that it will be looked at by the appropriate authorities. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Schedule, as amended, agreed to.
§ House resumed: Bill reported, with Amendments.