§ 4.10 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.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clauses 1 and 2 agreed to.
§ Clause 3 [Possessing anything with intent to destroy or damage property]:
LORD AIREDALE moved Amendment No. 1:
Page 2, line 5, leave out ("without lawful excuse").
§ The noble Lord said: Perhaps it would be permissible to discuss this Amendment and the next one together because they undoubtedly hang together. This is an Amendment to Clause 3 which deals with possessing anything with intent to damage property. The two Amendments are concerned with the position of the words "without lawful excuse" in the clause. As the clause is at present drafted, the words "without lawful excuse" come immediately before the words which denote possession and convey the impression that unlawful possession is a necessary ingredient of this Offence. But I do not believe that this is so; I believe that this offence is intended 1248 to be parallel with the offence of possessing housebreaking implements, and in the case of that offence it matters not whether the housebreaking implement is lawfully or not lawfully in one's possession; if one has it in one's possession with the intention of using it for housebreaking one commits an offence. Likewise, I should have imagined the purpose of this clause is that the offence is committed provided that there is the unlawful intention to use the instrument to do damage, irrespective of whether or not the instrument is lawfully or unlawfully in the possession of the person who is intending to use it.
§ That is the purpose of these two Amendments taken together. If the words "without lawful excuse" are placed in the position I suggest—after the word "intending"—it is made quite clear that it matters not whether or not the person is lawfully or not in possession. It is made quite clear that the offence is the intention of using it unlawfully to do damage. I beg to move.
§ THE LORD CHANCELLOR
I tried very hard to make out whether the noble Lord is right or wrong in his Amendment. He is probably right, and therefore I propose to accept it.
§ On Question, Amendment agreed to.
§ LORD AIREDALE: I beg to move Amendment No. 2.
Page 2, line 6, after ("intending") insert ("without lawful excuse").—(Lord Airedale.)
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Clause 4 [Punishment of offences]:
§ 4.14 p.m.
LORD GARDINER moved Amendment No. 3:
Page 2, line 20, leave out ("ten") and insert ("seven").
§ The noble and learned Lord said: I beg to move the Amendment standing in my name and that of my noble friend Lady Scrota. Paragraph 66 of the Report of the Law Commission recommended, in cases tried on indictment, for the simple offence and for offences of threatening in possession, imprisonment for ten years; for the simple offence 1249 where destruction or damage is caused by fire, imprisonment for life; and for the aggravated offence—that is to say, where there is danger to life—imprisonment for life. I have not put down any Amendment with regard to imprisonment for life. It seems to me that if a man deliberately sets fire to a house in which he knows there are men, women and children asleep, this is so near murder that it would not be very logical to have any different maximum penalty.
§ However, I suggested on Second Reading of this Bill that the penalty for the simple offence, where there is no fire used and no danger to life, ought to be seven years and not ten. I pointed out that the Law Commission in the working paper which they sent out originally recommended seven years, and did so for this reason. They looked carefully to see what sentences had been imposed for malicious damage and arson in the previous five years. They found that in an average year there were about 18,500 cases, of which about 18,000 were determined in the magistrates' courts—with a maximum penalty of six months' imprisonment—so that one is concerned only with the 500 serious cases which are tried on indictment. They found that those were variously disposed of by absolute discharge, conditional discharge, a mental health order under the 1959 Act, probation, a fine, detention centre, or borstal training; and that the only cases which received a sentence of imprisonment numbered about 170, out of the 18,500 a year. They then looked to see in each year in how many of these cases—which, it will be remembered, include not only ordinary malicious damage, the simple cases, but also all the arson cases and all the danger to life cases—a sentence of more than seven years had been imposed. They found that, on average, there were only five a year—pretty obviously cases where there had been either arson or danger to life.
§ When I took up this point on the Second Reading of the Bill I explained that in their final Report the Law Commission came to the conclusion that the penalty ought to be ten years rather than seven, and they gave only one reason. They said that the majority of the commentators on their Report had suggested something of that kind. Usually in their Reports the I aw Commission say to 1250 whom they send their working paper for comments, but in this case they have mentioned only the names of those who have commented: 13 individuals, all men and all lawyers, and some 12 organisations, including, I think, two in Australia and the Parliamentary draftsman in Northern Ireland. I raised this question on Second Reading so that one might find out to whom their communications were actually sent. It appears, from an Answer last night or this morning to a Question which I put down within, I think, 48 hours of the Second Reading, that the Law Commission's working papers went altogether to 105 different individuals and organisations—some of them libraries—so that people might read them and comment. It is natural enough—is it not?—that if a document is sent out to people saying: "This is what we are suggesting. Have you any comments?", the people who agree with what you are suggesting do not reply, and it is only those who object who do reply. In this case it seems that something like a dozen objected out of about 105 who were consulted.
On the Second Reading the only grounds for this penalty of ten years given by the noble and learned Lord the Lord Chancellor were, first, that I had been a member of a Government which had made the maximum penalty under the Theft Act ten years, and the damage might be worse than the theft. No doubt all these things are a matter of opinion. I should have thought that to steal something from someone intending permanently to deprive him of it is morally worse than merely damaging it. Secondly, if, as we saw last week, people can on one occasion steal half-a-million pounds we probably do need to have in reserve power for a fairly long sentence. Then the noble and learned Lord said: "After all, this might include blowing up a nuclear power station". Perhaps he had overlooked the fact that under Section 2 of the Explosive Substances Act 1883, which this Bill is leaving as it stands, it is an offence if one:
unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property",
and the maximum penalty which is left standing is imprisonment for life.
§ What encouraged me about what was said by my noble friend (he is, if I may say so, in one sense my noble friend, but I 1251 suppose I should say, "the noble and learned Lord") was his remark that the Government had not intended to increase the, penalties for these offences. May I say at once that I and my noble friend have no intention of decreasing the penalties. So really we come back to this, which is a question of fact: is ten years, rather than seven, increasing the penalties, or would seven years be decreasing them? Of course the Government are the only people who know what are the cases referred to in the Criminal Statistics. The Law Commission has taken them from the published Criminal Statistics—the number of convictions, the nature of the sentences, how many were over seven years, and so forth. Again with a view to ascertaining the facts, within (I think) 48 hours of the Second Reading I put down a question to find out whether, of this handful of cases, there was any case, which was not either an arson case or a danger to life case, that had resulted in a sentence of more than seven years. In the OFFICIAL REPORT of yesterday (col. 1206) the Answer came through to the effect that in all those five years the Government cannot find one single case, which was not an arson case or a danger to life case, in which any sentence of more than seven years has been imposed. Having regard to what the noble and learned Lord said on Second Reading as to the Government not intending to increase the penalties by this Bill, naturally we very much hope that the Government will be able to accept this Amendment. I beg to move.
§ 4.23 p.m.
§ VISCOUNT MASSEREENE AND FERRARD
May I just say one thing? I hope it is not a case of fools intervening where angels fear to tread, but the noble and learned Lord, Lord Gardiner, made one point that I was not quite happy about. He quite rightly said that his Government had introduced the Theft Bill which became an Act in 1968, which provides the maximum penalty of ten years for theft. But the noble and learned Lord went on to say that in his opinion if a man—a burglar, presumably—deprives somebody of his goods, that is a worse offence than if he does malicious damage to some goods or property.
What is the situation? Take the case or two men, one of whom steals some 1252 works of art while the other does such great malicious damage to those works of art that he completely destroys them and they are lost to posterity. It may be argued logically that the burglar who stole those works of art has not destroyed them, and that one day they may be restored to legal ownership and be saved for posterity, but that in the case of the man who has destroyed the works of art they are lost for all time. Therefore, I should have thought the man who destroyed the works of art ought to be subject to a similar sentence. The maximum sentence is hardly ever used, presumably. As I believe the noble and learned Lord said, it would probably be imposed in less than 5 per cent. of the cases, at the most. Surely both men should be subject to the same maximum penalty. Perhaps I am quite wrong, but it seems to me, as a layman, that there is some point in my argument.
§ LORD DONALDSON OF KINGS-BRIDGE
May I support my noble and learned friend, and indeed go a shade further? He said that provided the Bill did not increase the penalty, he was not trying to decrease it. I wish to go on record as saying that wherever I see a penalty of more than seven years I am in favour of decreasing it, and in our Second Reading debate I asked the noble and learned Lord who sits on the Woolsack a specific question about this point. I asked him, in so far as the Royal Commission were advised by some of the people who gave them advice to feint the term at ten years, rather than seven years, whether they gave any reason in favour of one figure rather than the other. The noble and learned Lord replied by calling me one or two perfectly good-tempered names, such as an "addict" and so on, for which I bear him no ill-will, but he did not answer the question.
It is in fact an extremely serious question. Is there any point in sending a man to prison for ten years? There is certainly a point in sending a man to prison for a long time. What is a long time? We cannot have a debate on that to-day, but my own view is that wherever you get the opportunity, without appearing to be unduly weak with criminals, to reduce sentences from the very long, you should take it. The alternative is that which the Law Commission has taken in the second type of offence—a life sentence. 1253 And that, in my opinion, is something that should not be lightly given without a good many changes, which this is not the moment to discuss.
I should like to ask the noble and learned Lord whether he can give some logical reason for sentencing a man who burns down a house to either ten years or seven years' imprisonment. I do not think I need elaborate on the problems here. It is quite obvious that it will not protect society any longer if you are going to let him out as soon as he is well; it is quite obvious that such a sentence does him nothing but harm after a certain period; it is quite obvious that it does not deter him from doing the same thing again—he would hardly have time. I should like to hear the reasons for this from the noble and learned Lord, and I also wish to have my views on record.
§ 4.28 p.m.
§ THE LORD CHANCELLOR
I do not think that at this juncture I can enter into the whole problem of sentencing policy with the noble Lord who has just spoken. Obviously there is no fundamental value in seven rather than ten, or ten rather than seven, or in fourteen rather than ten; or in five rather than seven. It is a question of judgment and degree. What happens to the man after he is sentenced is a question of penal treatment, and it may be that at some time your Lordships will wish to debate the whole question of penal treatment and sentencing policy. They are both important and interesting subjects. But I do not think I can give any answer to conform with this specification or a logical reason for one thing rather than another, because in essence it is a matter of judgment and degree, and must remain a matter of judgment and degree, depending upon the particular circumstances of the case.
I would also remind the noble Lord that any sentence over three years is in a sense an indeterminate sentence, because, quite apart from good conduct, there is the possibility of parole, the I whole purpose of which was to give a man who had been sentenced to a long period of imprisonment a chance—independently of the question of good conduct in gaol, and good conduct marks—to get out before that sentence was fully served. So in essence there is no diff 1254 erence in principle between life imprisonment and ten years: in both cases the man can get out after the Parole Board has had an opportunity to look at his case, if it considers it a suitable one for parole.
I come back to the question of the Amendment. It is of course a perfectly friendly argument between the noble and learned Lord, Lord Gardiner, and myself. He does not accuse me of wishing to impose a sentencing policy which is unduly harsh; nor do I wish to accuse him of imposing a sentencing policy which is unduly permissive. It seems to me that we are at ore about that, and therefore I can say quite simply and dispassionately why my right honourable friend who is responsible for this Bill, after I had consulted him about the Amendment of which the noble and learned Lord in effect gave notice at Second Reading, did not feel that he was able to go all the way with the noble and learned Lord.
I think the noble and learned Lord was perhaps a little cavalier in his treatment of his own responsibility, and the responsibility of the Government of the Party opposite, for imposing ten years as the standard maximum penalty for theft on indictment, and I do not think he has got out of the dilemma he is in by trying to draw a moral difference between malicious damage and theft. I do not know whether it is possible to draw moral differences in principle, and do not know that if I did I should draw any conclusion from my argumentation. The difference between destroying the "Queen Elizabeth", for instance, and stealing £450,000 seems to me to be morally indistinguishable. On the other hand, many cases of theft are worse than malicious damage, I have no doubt, and many cases of malicious damage are worse than theft. The view which the Law Commission formed, to which my right honourable friend adheres, is that they are so nearly alike in principle as offences against property that it is better to have the same standard penalty for both as a maximum, and my own judgment, for what it is worth, is that that is entirely right.
The second point which the noble and learned Lord raised was about the actual sentences for criminal damage. I think he rather overstated the effect of my 1255 Answer in yesterday's Hansard which was to the effect that out of 27 cases to which he had referred in his Question, 21 related to arson, and particulars of the other six were not readily available but they were not for arson. I cannot say whether they involved danger to life or not. I must say that viewing theft and viewing malicious damage as two offences with serious social consequences, which are unhappily all too rife at the present time, I cannot really see that a £450,000 robbery—assuming that it was done without violence; it was of course done with violence on the occasion we all have in mind—if it had been simple theft, is greatly different in moral principle or social damage from the offence of opening the cocks of a nuclear sub-marine and sending it to the bottom of the Atlantic. They are both serious crimes against property. Although, of course, the noble and learned Lord is perfectly right in saying that the Explosive Substances Act would cover the use of an explosive—at least a conventional explosive; I do not know whether it would cover the other kind—on a nuclear power station, I am not sure that that really disposes of the question. There are other more sophisticated ways of destroying a nuclear power station than using conventional explosives on it, and to do it without damaging or endangering life.
The fact is that there is this difference between theft and malicious damage: that theft on the whole can only be committed on reasonably portable property. I think the recent Theft Act abolishes the absolute necessity for asportation. In the old days it used to be an essential ingredient of the offence. I took pride in the fact that a member of my Chambers once prosecuted a man for stealing a steam roller, which you would think is a very difficult thing to do, and he prosecuted him to conviction. On the whole, immovable property, to which this Bill applies, is apt to be much more valuable than portable property, though this is of course a generalisation, like everything else one says on these occasions. I personally should have thought that they were sufficiently like as offences to bear the same standard penalty.
1256 The only other thing I should like to say is something which perhaps bears indirectly on what the noble Lord, Lord Donaldson, was saying. I think there is a difficult philosophical question which nobody has really explored between the maximum sentence which you impose for an offence in your Statute and the actual maximum which in practice the courts will wish to impose upon it; because in practice, as I think my noble friend behind me said, the courts do not, or only on the rarest occasions, impose the maximum sentence, whatever it is. To use, I hope, not an unseemly or facetious analogy, when one went to school one was always put in for an examination paper on which the maximum mark was 100 or alpha plus; nobody got 100 or alpha plus but they got very close; and the reason was that you always wanted a theoretical maximum which was slightly above the actual maximum you acquired in practice.
This is the argument in reverse, because what you are dealing with here is penalties, and speaking for myself I am quite satisfied—although this is a perfectly friendly argument and one does not want to get excited about it—that my right honourable friend has been right to stick to ten years. The only thing I would add is that the Law Commission, having originally proposed seven years were persuaded to go to ten, not only because of the numbers but because of the immense weight of those who had advised in that direction. They included, among others, the Lord Chief Justice, the Bar Council and the Law Society. One of the reasons they gave—although I have not endeavoured (and I do not go back on it) to use it as a weapon against the noble and learned Lord and his Party—was that a decrease, and it would be a decrease, might be widely misunderstood as indicating a soft attitude to serious offences. This is not the policy of the present Government, and I am glad to agree that it is not the policy of the Party opposite. In fact ten years is the mean between penalties of fourteen years and seven years, which were the high penalties imposed by the 1861 Act, and with respect I would advise the Committee to resist the Amendment.
§ BARONESS SEROTA
Like the noble Earl, Lord Cranbrook, I felt some diffidence about intervening in this discussion 1257 between two such noble and learned Lords, and especially on a Bill which emanates from the Law Commission, for whose excellent work I have such admiration. But I am encouraged to do so in relation to this Amendment for two reasons. In the first place, I think that penalties are not a matter only for lawyers when Parliament is consolidating an important branch of the criminal law; and in the second place because having read the Report of the Law Commission, both the Working Paper and its final Report, it seemed that they themselves were very uncertain about the level of penalties. I would agree with the noble and learned Lord that this is very much a matter of personal judgment, but when he suggests that the House might like at some future date to discuss penal treatment and sentencing policy—and I agree that this is not the occasion for it—he will surely recall that this happened as recently as last December when we debated the situation in our overcrowded prisons for six hours, and again in February on a Motion of the right reverend Prelate the Bishop of Durham when we debated for another five hours the effect of long-term sentences both for prisons and prisoners and the grave problems this presents to prison staff. I recall very well the forthright words of the noble Lord, Lord Windlesham, on this matter, when we were all in agreement about the problems which the growing numbers of long-term prisoners presented for our prison system.
There is one point on which the noble and learned Lord might be able to enlighten me. In the very admirable and most impressive list which we received in answer to my noble and learned friend's Question about the individuals and organisations consulted by the Law Commission, there is one very notable omission. The one organisation that has a duty to advise the Home Secretary on the treatment of offenders and the development of our penal system is his Advisory Council on the Penal System. In the appendix to the Report of the Law Commission the Advisory Council on the Penal System appears, and against it, in brackets, there is the special word "consulted". But it does not appear against bodies to which the Paper was actually sent. I wondered whether the noble and learned Lord could tell me if I am right in assuming from this rather 1258 strange position that the Advisory Council on the Penal System was consulted not on the Working Paper as a whole, which would include the level of the penalties, but only on those aspects of the Working Paper and the purpose of the Bill which related to the compensation provisions arising out of the Widgery Committee's Report?
§ THE LORD CHANCELLOR
The noble Baroness would be justified in assuming it, but I cannot give her an authoritative answer. I will seek to ascertain one, and let her know.
§ BARONESS SEROTA
I am grateful for that assurance, because I feel that this is the major body that should have been consulted to give a view on the whole Paper, including penalties, because they are directly concerned with developments that affect the penal system. I do not want to repeat all the arguments that have been so excellently presented by my noble and learned friend Lord Gardiner on this matter, but I must confess that I do not find this case proved, in a situation where the Law Commission were themselves not certain. The sentence in paragraph 15 of their Report reads as follows:This we think should be the destroying or damaging of property belonging to another, and for this offence we consider that on the basis of the statistics a maximum penalty of ten years' imprisonment is probably right.My noble and learned friend Lord Gardiner has already commented on the statistical evidence that the noble and learned Lord the Lord Chancellor has given him in reply to his Written Question. I hope that the Committee will support my noble and learned friend in this Amendment. I accept that it is a matter of judgment, but having studied the Law Commission's Report and the figures we now have I certainly agree that we should now legislate for a penalty of seven years rather than ten.
§ LORD CONESFORD
I share with noble Lords on both sides of the Committee a great respect for the views of the Law Commission. I am sorry that I missed a short part of the speech of the noble and learned Lord, Lord Gardiner, and it may be that he dealt with paragraph 64 of the Commission's Report and the sentence I am about to quote, but I think it is important to read what was the final statement on this subject by the Law Commission themselves. Whatever their 1259 earlier doubts were, they did finally, in paragraph 64, make this statement:The majority of our commentators thought this too low "—that was the seven years—and, on reflection, we agree that a maximum penalty of ten years' imprisonment, which is the same as for theft and for obtaining property by deception under the Theft Act 1968, is appropriate.Their final view was that the sentence the Government have put in the Bill was the appropriate sentence. In those circumstances, I do not think that we should attach undue weight to their earlier doubts, which have been cited in the speeches that have been made. The evil of malicious damage against which we are seeking to protect ourselves can be quite as bad as any theft, and I think there are very sound reasons for the final conclusion of the Commission themselves. For those reasons, I very much hope that the Government will be supported.
§ LORD GARDINER
If I may speak again, I hope I have made it plain that it is no object of my Amendment that any lower sentences should be passed for offences of this kind than have been passed in the past. If there were any evidence that it would have that effect, I would ask leave to withdraw the Amendment. As the noble and learned Lord the Lord Chancellor has told us that it is not the Government's intention that the Bill in its present form should increase the present level of sentences, may I ask him whether, if I ask leave to withdraw the Amendment, he would be prepared before the next stage of the Bill to consult his right honourable friend again? I ask that for two reasons: first of all, it would enable the obtaining of an answer to the point which my noble friend Lady Scrota has raised as to what exactly was the part of the Advisory Committee in this matter. I gather we cannot know that this afternoon. Secondly, it is my strong impression—I may be wrong—that since the Question was put down for Written Answer on March 18 and the Answer did not arrive until, I think, last night, right to the last moment, and long after the noble and learned Lord discussed the matter with his right honourable friend, the Home Office were still desperately 1260 trying to find any case of this class which in those five years had received a higher sentence than seven years. If that is right, it remains the fact that this Bill imposes a higher sentence than any that has yet been awarded for this class of offence. If I am right in thinking that the noble and learned Lord discussed this matter with his right honourable friend before those facts were known, I would ask him whether, if I withdrew the Amendment, he would discuss it again with his right honourable friend before the next stage of the Bill.
§ THE LORD CHANCELLOR
On one part of the noble and learned Lord's speech I can give an answer straight away. On the point raised by the noble Baroness, Lady Scrota, I can now tell her, since I have been rapidly served by my advisers, that the Advisory Council on the Penal System were consulted on the Paper as a whole. As regards the main point of the noble and learned Lord, I will at his request certainly discuss it again with my right honourable friend, without any commitment at all, because we did discuss it before and we came to a conclusion.
§ LORD GARDINER
I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clauses 5 to 9 agreed to.
§ Clause 10 [Interpretation]:
§ 4.48 p.m.
THE EARL OF CRANBROOK moved Amendment No. 4:
Page 5, leave out lines 25 and 26.
§ The noble Earl said: There are three Amendments standing in the names of the noble Lords, Lord Henley and Lord Hurcomb, and myself, and they are closely related. The first two would leave all plants growing wild to be considered as property; the third one trees only. Since the first and greater includes the third, it may be for the convenience of your Lordships if I deal first with trees alone.
§ The principal Act of 1861 made it an offence to destroy any tree or sapling or shrub wheresoever growing of the value of 1s. and upwards. For some reason 1261 the Law Commission excluded from its definition of property the foliage and the like of trees growing wild. There is no definition of trees growing wild, and I am assuming that a self-sown tree, which has not been deliberately planted, is growing wild. However, I should be grateful if the noble and learned Lord could tell us what "growing wild" does mean. Is a hedgerow, which is regularly trimmed by the occupier, growing wild or not? For the last fortnight I have locked every day at a hedgerow in my village which is closely trimmed, and which is now partially covered with blackthorn blossom. If that hedge were free for anybody to pick, and if every casual passerby picked the twigs on which those flowers grow, the hedge would be completely ruined.
§ The 1961 Act provided penalties for causing damage to fences, or to plants used for the food of livestock. But is a field of natural grasses, which is harrowed, rolled, limed and manured in order to increase its productivity as a grazing field or as a meadow for hay, "growing wild"? And can anybody tread it down or drive his motor car over it without doing any wrong?
§ So far as trees are concerned, I do not believe that the Law Commission can have realised that both trees which have been deliberately planted and trees which have grown by being self-sown are of increasing importance to the forester, and both can equally be ruined as potential timber trees if the foliage of their leading shoots is removed. As your Lordships know, new plantations are started by planting seedling trees which have been brought on or grown up in a nursery, and when an old plantation is felled it can be replaced in the same way. But increasingly in this country foresters are relying on the seedlings which spring from seeds shed by the parent trees before they are felled to replace them. This natural regeneration has for long been the practice on the Continent, where there are very few rabbits; but before myxomatosis arrived that could not be done in this country, because the rabbits ate the young seedlings as soon as they appeared. It is only in recent years that this practice of using natural regeneration has been adopted, and it is of very considerable importance.1262
I should have thought that naturally grown trees, as well as artificially grown trees, should be regarded as property. I took this point up with the noble Lord, Lord Taylor of Gryfe, who is Chairman of the Forestry Commission, and he told me that they have consulted with the Law Commission. I quote his letter:
The Law Commission took the view that trees deliberately left to regenerate naturally for a particular purpose would probably not be regarded as wild, although it is clear that the question of whether a tree is growing wild or not might on occasions entail some nicely balanced judgments of the courts.
I do not think that is good enough for the forester who will have to rely on natural regeneration for replacements.
§ When we come to herbaceous plants, I readily accept that the position is not so clear-cut. What we all agree on is that we need some protection from vandalism against flowers and the like, which give us all so much pleasure; and that beauty in the countryside is the property of the population at large and not just of the landowner on whose land it happens to be found. Most owners are very conscious of that fact, and they allow people to enjoy the daffodils, the bluebells or the fritillaries which are found on their land. But what is needed is something to protect the plants, which might well disappear, against the first-comers so that the second and subsequent comers can see them all in all their natural beauty. Where plants of that sort are found we can tell people, "Please do not pick the plants". But if the law now states, quite deliberately and specifically, that these plants can be damaged with impunity, then I do not see how they can be protected.
§ The noble and learned Lord suggested that this was a case for a special conservation Bill to be introduced by some conservation bodies. A Bill of that nature would of course give absolute protection to rarities, such as plants growing on some Scottish mountain, which are realty in danger only from the botanist who picks them for his herbarium or for his garden and are not susceptible to attacks by vandals. I cannot see how we can protect the plants which are not rare but are beautiful by reason of their very commonness and abundance unless some Amendment such as we are discussing is included in this Bill.1263
§ A conservation Bill would obviously give a right to the Nature Conservancy to authorise people to take plants under licence, but it would not be possible to use that sledgehammer to crack the nut of these common and beautiful plants which I want to see protected. It seems very much better to leave their protection under the control of the owner of the land on which they grow; and if, as will inevitably happen in practically every case, he takes no steps to protect against the casual picker of a flower or of a blackberry, then I think he will have the protection of Clause 5(2)(a), as he most certainly would in my village. After all it is de minimis, and I think that the lover who picks a posy of Tragopogon pratense to give to his mistress would certainly not be prosecuted; and even if he were, I should have thought that no court would inflict a penalty. I hope that the noble and learned Lord may be able to look on flowers in a rather different light as a result of what I have said. I beg to move.
§ 4.57 p.m.
§ LORD HURCOMB
I added my name to the Amendments put down by my noble friend Lord Cranbrook, because I am very much influenced by the same considerations that he has brought to your Lordships' attention. But I should like for a moment to cover rather wider ground. With the very greatest respect to the law, it seems to me that we may be asking too much of the lawyers. However learned and distinguished they may be, and however lucid and logical they may be in their use of language, we cannot expect them to produce a coherent policy for the conservation of our flora and fauna without the Government themselves or Parliament laying down the lines of policy which they want to be followed in these matters. Your Lordships' House is perpetually being brought up against these problems in some legal form or another, and in the past, speaking for the moment from the point of view of conservationists, we have found it possible to make progress only piecemeal.
Mainly with the support given by your Lordships' House, we now have what I regard as a fairly satisfactory legislative framework for the protection of birds. But many other elements of the fauna 1264 need protection, and therefore we have been forced to introduce private Members' Bills for particular species—one day deer, the next day the seal, the next day the otter or the badger. But we do not yet have a proper legislative framework for the adequate protection and conservation of our flora and fauna as a whole and though it may be impossible or difficult, or even wrong, to try to deal with wild flowers in the present Bill, I cannot but share the noble Earl's feelings that it is necessary without delay to find some means of protecting the common flowers of the countryside.
I agree with him that the very rare plants are mainly the victims of the professional botanist or the over-zealous amateur gardener. But take a flower that is probably familiar to all your Lordships—the fritillary, which is very beautiful, very interesting and rather curious. When I was a boy, I could have found in the Home Counties probably a hundred sites where that flower could be seen. I doubt whether to-day one could find a dozen. Anyone who lives in London and wants to see even such flowers as cowslips or primroses in abundant bloom, will be very hard put to it unless he trespasses along some railway embankment or very remote piece of waste ground.
It seems to me that it is now the business of the Secretary of State for the Environment to produce a coherent, well-thought-out means of protecting both the rarities and the common elements in our flora and fauna, and not to put Parliament in the position of having to deal with it piecemeal—as I say, one day with seals, the next day with birds, the next day with wild flowers. Let us try to aim at something comprehensive. If I may again say so, with the greatest respect to the law, it seems to me unreasonable to expect the lawyers to deal with it by trying to rationalise the existing law, framed when the whole problem was entirely different; when the attitude of the public was entirely different; when the risks to which all these creatures or plants are exposed were entirely different. We shall not get very far on those lines.
May I conclude by saying one other thing? This point was argued in connection with both animals and plants not very long ago, in connection with the Theft Bill, and on that occasion, if I remember aright, it was declared that 1265 wild creatures, tamed or untamed, should be regarded as property; but that, although they were property, they could not be regarded as stolen unless they were plucked for reward or sale. If I remember aright, the noble and learned Viscount, Lord Dilhorne, took very strong exception to introducing that conception; nevertheless, it went into the Bill.
But it was argued then, again if I remember aright, by Lord Stonham, on behalf of the Home Office, that by making wild creatures property we were giving them a degree of protection which they otherwise would not have. I remember asking at the time whether wild creatures included all the invertebrates, and where the property in a butterfly vested if it flew from one side of a hedge to another. I do not think I received very satisfactory answers to those questions, which may have been rather frivolous. But now, when we come to plants, it is argued that it does not matter, that they need not be anybody's property; and I think we are asked to accept the view that, though they will not be anybody's property, they will not be at any greater risk. That is why I support the Amendment, but I am very ready to be told, for the reasons I suggested just now, that this is not the way to do it; and what we want is at least a proper Wild Plants Protection Bill produced by the Minister for the Environment without any further delay.
§ VISCOUNT MASSEREENE AND FERRARD
I have some sympathy with the Amendment moved by my noble friend behind me, but not 100 per cent. sympathy. We have certainly come a long way since 1820, when a Bill came before your Lordships' House to abolish capital punishment for cutting down a tree. The then Lord Chancellor, who I think was Lord Eldon, rose majestically from the Woolsack and said, "But, my Lords, it may be that the whole country will be deforested "—or words to that effect. As I read this Bill (I have just glanced at it; I am afraid that I have not read it very thoroughly) it appears to me that whereas a boy could come into my orchard and steal a cherry and would then be subject to a maximum penalty of ten years, that same boy (he would then have to be a grown man) could go into my park and cut down an oak tree worth 1266 £100, provided that it was a wild tree (though how you define a wild tree, I do not know) and merely be admonished. Or he might cut down ten oak trees, which would be worth £1,000. It seems that there is something wrong here. Presumably, under the law of trespass, he would be trespassing if he came into my park, and therefore I could prosecute him for trespass. But the point is that under the law of trespass he would merely be admonished or have to pay a small fine, even though he would be doing damage.
I am rather at sea here, but I quite agree that one does not want to prevent the public from blackberrying or from picking mushrooms. This is the last thing I should want to do. But it rather worries me, as I say, that somebody might come on to one's land and actually cut down perhaps a walnut tree, which is far more valuable than an oak tree provided it is suitable for veneer. It may be worth £600, £700 or £800. I should really like the noble and learned Lord the Lord Chancellor to explain that my fears are quite groundless, because I am rather worried about this.
§ 5.7 p.m.
§ THE LORD CHANCELLOR
My noble friend is a landowner in Scotland rather than in England.
§ THE LORD CHANCELLOR
Perhaps both. So far as the Scottish law is concerned, I am not fully armed; but without going into the difference between trespass and criminal liability I think I can relieve him a little more—almost completely—as to his anxieties about the provisions of this Bill. The first thing I should like to do is to discuss what this Bill does unamended, and then what the Amendment would do.
If my noble friend turns to Clause 10, he will see that, for the purposes of criminal damage, the Bill excludes from the expression "property" mushrooms growing wild and flowers, fruit or foliage of a plant growing wild; and thereafter provides that the word "mushroom" includes any fungus and the word "plant" any tree. That means that if I cut down my noble friend's oak tree I am committing damage, because it has a trunk as well as foliage. At least, if it 1267 were the kind of oak tree which is worth £100, as he postulated, it would have a trunk; and I must not damage the trunk of a tree because it would be property. So I think he can be completely satisfied about groves of oaks so far as the Bill covers English properties. What would happen in Scotland I would not venture to say.
Coming back to the question of nature conservation (I am rather working back along the line of speakers), I have a great deal of sympathy with the noble Lord, Lord Hurcomb, in what he says about nature conservation; but I do not think that conservationists are necessarily benefiting their cause by trying to use a Criminal Damage Bill for the purpose of protecting either rare or common plants. I think they are far more likely to make themselves unpopular with the inhabitants of the countryside, if they will forgive my saying so. If my noble friend Lord Cranbrook visits Switzerland from time to time (I hope he does, because it is a lovely country) he will notice that they have exactly the same kind of problem with the extraordinarily beautiful flora there. They do it, I think he will find, by two means in particular. One is that they have particular territories which they call Naturschützgebiet, which is, roughly speaking, "a place of outstanding natural beauty" and there you cannot pick any flower, under penalties. On all the main places where the more beautiful flora grow they have pictures of the flora which are protected, with a description of them. They are absolutely protected and it is a crime against the State to pick them. You get the beautiful little flower silene acaulis, for instance, some the androsaces and some of the less beautiful edelweiss (or leontopodium alpestre). They are protected, and that, I think, is the only way in which it can be done.
I do not think it can be done by means of a Bill the purpose of which is to consolidate and improve the law of the protection of property, public and private, from malicious damage—criminal damage as we have come to call it. If you tried to use a property Bill for this purpose I think it would have two undesirable results. In the first place, I do not think you would protect effectively plants growing on 1268 common land as distinct from land belonging to the Nature Conservancy or something like that. Secondly, I do not think landowners would be in the least interested—many of them, farmers or whoever had a right to the property—in enforcing an Act about precisely the kind of plant that you want most to protect. It would be an unusual farmer who was particularly concerned about the fritillary, a flower referred to by the noble Lord. The way to protect that is to let it be known that it is protected and to try to enforce protection by the enforcement machinery. Do not leave it to the private landowner.
The second of the two objections of my noble friend, Lord Cranbrook, to whose speech I now return, was not conservation qua conservation; in the latter part of his remarks he was concerned with the conservation aspect put forward by the noble Lord, Lord Hurcomb. In the earlier part of his remarks he was concerned with the rights of landowners, quite rightly, because this Bill is one for the protection of the rights of landowners. May I deploy the case against him on that footing?—a different case with a different set of arguments. Long before the land of this country—I am talking about England and Wales, all the time—was inclosed, the people of the villages picked wild flowers, blackberries and mushrooms. Many of them went out into the woods and picked the foliage of trees in May—what is called "maying", and so on. The effect of my noble friend's Amendment, however well intentioned, would be, I believe, that for the first time in our long history this would become a criminal offence, punishable by six months on summary conviction, or ten years—if it is ten years—on indictment. That absolutely revolts my own social conscience. I am as much against vandalism or malicious damage and for the protection of private property as he is; but the idea that in 1971 an offence of this kind should be created, for the first time, in an Act for the protection of private property against malicious damage, shocks me to the core. I am sorry to say that, but it does. I do not think we could get it through another place, even if we passed it here, and certainly it does not have the support of the Government.
1269 My noble friend posed a number of relatively difficult questions, some more difficult than others. What is wild is not a question of the law but a question of fact. If it is cultivated it is not wild. Without prejudging any case which might come into the courts about his own blackthorn hedge, I would suspect from what he says about it that it was considerably cultivated. Similarly, the ordinary farmers' lands, the grasses, are cultivated—they are rolled; harrowed, covered with fertiliser and cultivated. Under the old law, which we are now changing, a device of the farmer, if he had a lot of mushrooms in his fields, was to cast a little mushroom spawn on his meadows and pretend that what came up was cultivated mushrooms. This was an extremely effective way to prevent the taking of wild mushrooms, because wild mushrooms have never been protected against damage and I do not think they should be, even if they are rather rare fungi, even if they are the sacred fungi referred to absurdly by Mr. Allegro in his ridiculous book. I do not think they should be protected in that way.
I hope I have made it clear that the Bill as unamended protects landowners from having plants dug up. You cannot dig up primroses or cowslips, but you can pick them without committing a crime. Equally with trees, you can pick the foliage, or even the wild sloes if you like sloe gin, but you cannot destroy the trunk or dig up the tree if that is the method of destruction you prefer. I think that is about right myself, and I do not want to alter it very much. If you get this rather difficult problem of natural regeneration which my noble friend quite rightly raised, a number of rather difficult borderline cases—questions of fact and degree very largely—may arise. It might be difficult to determine in an individual case what amount of attention or management had to be lavished on a natural copse before its trees ceased to be growing wild, but I am told that in practice this is unlikely to be a serious problem. The answer must depend on the intention of the person preserving the plants and the degree of attention given, and this may be safely left to the courts to decide. I should have thought—this is a personal opinion—that where the situation is one in which the owner postu 1270 lates a deliberate method of arboriculture, whereby natural regeneration is relied upon as the method by which the wood renewed itself, the courts would decide that this was not growing wild within the sense of the Act. I do not feel absolutely confident of that opinion, but for what it is worth I think it is slightly the better opinion of the two.
My Lords, I turn to the effect of the Amendments which my noble friend has proposed. The first two, which go together, would make picking blackberries, wild flowers, wild strawberries, elderberries, nuts or sloes a crime. So a botanist who goes out and makes his little hortis siccus would be committing a crime. The other Amendment is limited to trees, but I hope I have given the Committee enough argument to show that while I have a good deal of sympathy with both the points of view which have been put forward—both the conservationist's point of view and the more limited point of view that landowners are entitled to protection against vandals—I would not go the length of these Amendments. Therefore, I would advise the Committee against them.
§ THE EARL OF CRANBROOK
After what the noble and learned Lord has said about the first two Amendments, I feel bound, if the two noble Lords whose names are down with mine agree, to withdraw the first two Amendments. The third Amendment I think is of importance. The noble and learned Lord has not altogether satisfied me. He says himself that there are likely to be some doubts. I cannot see that the public would suffer in any way if trees were included as property whether self-sown or planted, and I should not like to withdraw the third Amendment.
With regard to the first two Amendments which are also in my name, I think I agree with the noble Earl that perhaps it would be reasonable to ask leave to withdraw these. Nevertheless I hope that the noble and learned Lord the Lord Chancellor will take very special note of the words of the extremely distinguished naturalist, the noble Lord, Lord Hurcomb. It is all very well for the noble and learned Lord to say that he does not want in this Bill to bring in something that was not there 1271 before. Nevertheless, with the Theft Act and with this Bill, the Government have left a very serious gap.
The noble and learned Lord said on Second Reading that he thought it would be useful to consult the Department for the Environment and consider a method for devising some sort of statute to deal with this matter. I feel that this is up to the Government. The noble Lord, Lord Hurcomb, made this point very well. This is a state of affairs created by the Government and I hope very much that they will look to it. I quite agree that one does not want to have a state of affairs in which people cannot go picking blackberries or mushrooms, and so on, which they have always been able to do. But now we are living in a world in which, if we do not exercise some restraint, by law or otherwise, none of these things will be left. I think the Government have not quite faced up to this in the arguments that they have used in opposing the Amendments. Nevertheless, I agree that it might be sensible to ask leave to withdraw these two Amendments.
§ THE MARQUESS OF SALISBURY
May I say a word or two about the third Amendment? I have listened with great interest to what the noble and learned Lord has said about the first two. I think that it is probably true that this is not the proper Bill by which to achieve this particular objective, although it is something which badly needs doing. But when you come to the third Amendment, this is not merely a matter of a number of wild trees; they are a crop. Natural regeneration has become one of the main systems of renewing the woodlands of this country, and many landowners use it. I do not think that these trees should be put into the same category as the others. If the noble Earl, Lord Cranbrook, wanted to go to a Division on that matter I should certainly support him.
§ Amendment, by leave, withdrawn.
§ 5.22 p.m.
§ THE EARL OF CRANBROOK: I beg to move Amendment No. 6.
Page 5, line 28, leave out ("or tree").—(The Earl of Cranbrook.)
§ THE LORD CHANCELLOR
I hope that here I have not been more confused than usual. I think that there are some difficult border-line cases. If my noble friend will withdraw this Amendment I shall certainly consult with my right honourable friend as to whether those cases can be dealt with. In answer to the noble Marquess, I am quite sure in my own mind that if the trees can fairly be described as a crop then they are within the Bill already and the Amendment is unnecessary. Doubts may arise in marginal cases as to whether the trees are being treated as a crop. Where you cultivate trees you are already within the Bill—and rightly so.
§ THE MARQUESS OF SALISBURY
With all deference to the noble and learned Lord, they are not cultivated; they are trees which are allowed to grow and yet they are in fact a crop. They are a way of renewing your woodlands. If the noble and learned Lord will tell me exactly where in the Bill they are protected then we should all be absolutely satisfied.
§ THE LORD CHANCELLOR
I sought to do this previously. I recognise at once that since the disappearance, or perhaps the diminution, of the rabbit, natural regeneration has been a perfectly legitimate method in forestry of renewing trees. If the noble Marquess asks me where in the Bill this method is protected, I have already stated as my opinion that where trees are treated as a crop and natural regeneration is the method used for renewing the crop then they are not growing wild within the meaning of Clause 10. When I expressed that opinion I added the rider that I thought it was the true view—and I was advised that it was—but that any lawyer who advised that that was the only possible view would have a fool for his client. On the other hand, I have promised that if my noble friend will withdraw the Amendment at this stage I will see whether before Report anyone can devise a form of words to bring natural regeneration within the terms of the Bill more explicitly, if that is thought to be required. I recognise what the noble Marquess has said. It is a crop, and this is a legitimate method of husbandry. It ought to be protected in a Bill protecting property. If at this stage my noble friend will be satisfied with this 1273 assurance I will do my best to consult my right honourable friend before the next stage.
§ THE EARL OF CRANBROOK
I shall be grateful if my noble and learned friend would do that and I should be happy to withdraw the Amendment. But I would ask him to remember that in defining trees which naturally regenerate themselves as a crop, in a very large number of cases one does not know until after a considerable period of time whether there will be enough to make the crop required. That means that the law must be ready to protect rather more than would ultimately be the final crop; because you cannot know this until trees have reached a certain stage of maturity; and if they are damaged before then they would be no use at all. If my noble and learned friend would bear that in mind I will withdraw the Amendment and hope for better luck at the Report stage.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.
§ Remaining clauses agreed to.
§ Schedule [Repeals]:
§ THE LORD CHANCELLOR
I think that I can quite honestly say that this is a purely technical Amendment of no real interest to anybody. Its effect is to repeal a reference to the Malicious Damage Act, 1861, in the Magistrates' Courts Act, 1952, and the reason why it is put in at this stage is that it was overlooked when the Bill was drafted. I beg to move.
Page 8, line 39, column 3, at beginning insert ("Section 127(1)").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Schedule, as amended, agreed to.
§ House resumed:—Bill reported with Amendments.