HL Deb 16 February 1971 vol 315 cc497-501

3.34 p.m.

Report received.

Clause 1 [Abolition of prerogatives of the Crown as to wild creatures, and franchises derived therefrom]:

LORD CONESFORD moved Amendment No. 1: Page 1, leave out line 7 and insert ("except royal fish and swans").

The noble Lord said: My Lords, in the Bill as introduced Clause 1(1) proposed to abolish: any prerogative right of Her Majesty to wild creatures (including royal fish but not including swans) … As amended in Committee by the Amendments of my noble friend Lord Cranbrook, the subsection would abolish: any prerogative right of Her Majesty to wild creatures (including sturgeons but not including whales or swans) … The Amendment which I now move would amend the subsection so as to abolish: any prerogative right of Her Majesty to wild creatures except royal fish and swans".

My purpose is to remove the ambiguity caused by the use of the expression "whales" instead of "royal fish" and to treat sturgeons in the same way as other royal fish. The ambiguity is briefly this. It is doubtful whether the expression "whales" in the subsection would cover porpoises and dolphins. This ambiguity and defects in the Bill have been brought to our attention by the Law Commission, and the Amendments which I have the honour to move have been drafted by them to cure the defects. They leave untouched the main purpose of the Amendments carried in Committee by my noble friend Lord Cranbrook, who authorises me to say that he strongly supports the Amendments which I am moving.

I will not weary the House by reviewing the ancient authorities so entertainingly brought to our notice in the earlier stages of this measure by my noble and learned friend who sits on the Woolsack. Those authorities include Chief Justice Coke, Blackstone and Matthew Hale. My conclusions from the authorities would be that the right to royal fish extends beyond whales, in the modern sense, and sturgeons and probably covers in England cetaceans generally. It is undesirable, by naming one species of cetacean in the clause, to give rise to doubts about others. As the House knows, the instructions issued by the Department of Trade and Industry require the Natural History Museum to be notified about stranded whales, porpoises and dolphins.

The doubt is not only legal; it is also zoological. Dr. Fraser, whose interesting article in The Times has been mentioned in earlier debates, is unable to say whether a naturalist would regard whales in this subsection as extending also to dolphins and porpoises. For these reasons, I propose in my Amendment to restore the words "royal fish". Nor is there any reason why sturgeons should be singled out and excluded front the category of royal fish as if there were something offensive about them.

The House will be most grateful to the Law Commission for drawing attention to these defects in the Bill as it stands and for drafting the necessary Amendments, after making all proper consultations. My noble friend Lord Cranbrook, who I think is detained by public business in his own county, authorises me to say that he heartily commends these Amendments to the House. I beg to move.

LORD STOW HILL

My Lords, I cannot pretend that I feel violently emotionally moved by the arguments, to which we have just listened, either for or against the Amendment. But as I sought to indicate in the course of our last debate, I am all in favour of clarity and certainty. In addition to that, if I may declare a personal interest, it is that I have a great affection for dolphins and porpoises. I do not know on what it is based—I suppose broadly speaking on their shape and antics and the role which they play in our whole natural history make up.

The noble Lord has said that he has received the advice of the Law Commission, which I always respect, and I hope that the noble and learned Lord on the Woolsack will agree that the Amendment really does not involve the controversy that arose when the previous Amendment was moved in Committee to these particular words. I would simply say, therefore, that I hope first, out of loyalty to dolphins and porpoises, and secondly, in the interests of clarity, that the House might feel able to support the noble Lord in the Amendment that he has moved.

LORD HURCOMB

My Lords, I supported my noble friend Lord Cranbrook when he moved the original Amendment, on merits and not on form. In fact, I raise with him the question whether the use of the term "whales" was either legally or zoologically quite right. On the substance of the Amendments, the whole point is that the cetacea, particularly the porpoises and dolphins, are valuable scientific material, and may become even more important than they have been, because so many creatures are now being poisoned in one form or another in the sea owing to causes of which we are still quite ignorant. We cannot afford to sacrifice valuable scientific material in the shape of this large group of mammals, which are likely to have more value for human health and what is happening to ourselves than fish or molluscs. I felt that it was not satisfactory that material of this value and interest, when these creatures got stranded, should be left just lying about on the foreshore, with nobody apparently having any right of property in them or rights over them.

It does not worry me that we find a Statute going back to the 11th century that can be used to give them this necessary protection, any more than it worries me or diminishes my pride and pleasure as an Englishman in the New Forest when I think that its preservation is due to one of the Norman sovereigns. If, as part of his obsolete forest law, he happened to give protection to these creatures, well and good. May I conclude by saying not only that I am satisfied that these Amendments give effect to all that those interested in the matter, and particularly the Natural History Museum, have in mind in supporting them, but we are grateful for having the Amendments put in such neat and proper legal form.

LORD TREVELYAN

My Lords, I should like to put in a special plea for those amiable creatures, the dolphins, who have been supporting my family for 200 years, though, according to the Garter King at Arms, without any authority whatever.

THE LORD CHANCELLOR

My Lords, I rise only to give a rather sour welcome to these Amendments and to explain my own position in the matter. As I tried to point out in Committee, the noble Lord, Lord Hurcomb, is completely in error in thinking that any of these Amendments will make the smallest difference to any porpoise, whale, dolphin or sturgeon in the world, because what is done with them when they are stranded on the shores of the British Isles has no relation whatever to the ancient laws of which the noble Lord is so fond, but only to an administrative practice which could be stopped to-morrow. I do not take back a word of the criticisms of the Amendments which were ultimately carried in Committee, because those criticisms happen to be completely correct law and the Natural History Museum do not know enough law to put me down. However, the Amendments were carried. A very distinguished predecessor of mine said that law reform takes place by consent or not at all, and went on into a tremendous indictment of Parliament, which he quite rightly accused of being mainly responsible for the absence of law reform in this country. I, standing in the shoes of the late Lord Campbell, largely share his view.

However, I was then faced with a difficult situation, because no sooner had the Amendments been carried than the Law Commission—who were of the same opinion as myself with regard to the original purpose, that, like the holy water on Mount Athos, "It'll dae ye nae harm, it'll dae ye nae guid"—uttered what, but for my dislike of puns, I should call a series of wails about the awful mess which the actual form of the Amendment would cause. I need not go into the reasons, some of which were put forward by my noble and learned friend who proposed the Amendment. I was then in a difficulty, because the Law Commission wanted me to tidy the thing up, and I refused to have any part or lot in it because I thought it was a nonsense—and I shall go on saying it was a nonsense until my dying day. But I did not want to leave everybody in the lurch, so I put them in touch with my noble friend who was largely responsible for the nonsense. He courteously suggested that he would propose the Amendments for me. Therefore, with a rather sour welcome, I wish to say that they are wholly acceptable to Her Majesty's Government.

LORD CONESFORD

My Lords, I believe that technically I have the right to reply, but I do not think I need make much use of it because my noble and learned friend on the Woolsack has accepted the Amendment, and that was really the object of the exercise. I may say that I do not think there is anybody anywhere who has a greater respect and admiration for my noble and learned friend than I have: I merely think that he is sometimes wrong.

On Question, Amendment agreed to.

LORD CONESFORD

My Lords, Amendment NO. 2 is consequential. I beg to move. Page 2, line 21, leave out from beginning to ("to") in line 23 and insert ("The partial repeal by this Act of section 2 of the Night Poaching Act 1828 extends").—(Lord Conesford.)

On Question, Amendment agreed to.

LORD CONESFORD

My Lords, Amendment No. 3 is also consequential. I beg to move. Page 3, leave out lines 17 and 18.—(Lord Conesford.)

On Question, Amendment agreed to.