Wildlife and Countryside Bill [H.L.]

HL Deb 27 January 1981 vol 416 cc629-89

3 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin)

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.—(Lord Bellwin.)

The Lord President of the Council (Lord Soames)

My Lords, I hope that the House will permit me to delay for a few more moments the beginning of what I am sure will be a well-informed and interesting Committee stage. But I think it is right that as Leader of the House I should draw attention to the quite exceptional number of amendments—in fact, I believe in recent years an unprecedented number—which appear on the Marshalled List today.

A substantial number of the amendments, including a good many to clauses which we expect to reach today, were in fact tabled towards the very end of last week. This has inevitably caused certain processing and printing difficulties, and I hope that the House will be tolerant about these difficulties. The Bill is, of course, an important one, and I fully recognise the very great interest which it has aroused in your Lordships' House. I am sure that those concerned will have welcomed its introduction in this House early in the Session, and that they will equally recognise the importance of passing it to another place in reasonable time. Therefore, I feel it my duty to ask the House to proceed with this Bill, certainly constructively, but also as expeditiously as may be possible.

As the House is master of its own proceedings, unlike another place, we do not have a Speaker with the power to select amendments, and it is right, proper and necessary therefore that the House should impose its own internal discipline in these matters. I am sure that in the normal way noble Lords will confine themselves to the main issues raised and will be ready, where practicable, to group together those amendments which raise substantially the same proposals. Having said that, I, and I am sure the rest of the House, look forward to a constructive Committee stage.

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord ABERDARE in the Chair.]

Clause 1 [Protection of wild birds, their nests and eggs]:

Lord Renton moved Amendment No. 1: Page 2, line 5, leave out ("or any order made under this Part or those Acts")

The noble Lord said: I beg to move Amendment No. 1. In view of what my noble friend the Lord President has just said, may I say that I support the Bill, and the few amendments which I tabled a week or so ago are intended to strengthen it in various ways.

This particular amendment is a probing one to give the Government a chance to consider whether it would not be better that people should always be prosecuted for offences against the statutes only, rather than being prosecuted sometimes for offences against ministerial orders made by the Secretary of State under Clause 3. Although there are various precedents for what is proposed in the Bill in this respect, especially under wartime emergency legislation, is it not surely better that people should be prosecuted for offences defined by Parliament rather than those defined by Ministers in secondary legislation? As long ago as the early 1930s Lord Stewart wrote a famous book called the New Despotism, and after the Second World War my old tutor, Professor C. K. Allen, wrote a book called Laws and Orders. As long ago as those books this practice of creating offences by ministerial order was deplored, and there is no need for it.

Although it is right that the Secretary of State should have the power to make orders specifying areas under Clause 3, there is no need for him to create new offences in doing so. In each case the charge could, for example, allege that the accused person committed an offence against Section 1 in that he did an act forbidden by that section in an area specified by the Secretary of State in the order. So that is a simple way round any difficulty that the Government may have in this matter.

I do not expect a final answer today; it will require consideration; and perhaps there are one or two of your Lordships who may agree or disagree with what I have said. Even if this particular amendment was accepted, as indeed it could be, consequential amendments would be necessary. I beg to move.

The Earl of Avon

I have listened with considerable attention to my noble friend on this very learned point. I am sure that the counsel will take note of his points and, when we return to the matter at a later stage, give me some advice. As regards the amendment as drafted, it would make it an offence to be in possession or control of any wild bird or egg of a wild bird not shown to have been killed or taken otherwise than in contravention of Part 1 of the Bill, the Protection of Birds Act 1954 to 1967, or any order made under Part 1 of the Bill or under Acts. However, rather than go into any more detail, I shall undertake to look into this and hope that my noble friend will be able to withdraw his amendment.

Lord Melchett

I also listened with great care to what the noble Lord said in introducing the amendment, and I had assumed that the intention behind the amendment was quite different. If the noble Earl is to write to his noble friend, could he possibly copy the correspondence to us so that we may be a little more enlightened on the actual effect of this amendment?

Lord Renton

I am much obliged for that implied support, and I am grateful to my noble friend for saying that he will have this matter considered. In these circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.8 p.m.

Lord Montagu of Beaulieu moved Amendment No. 2:

Page 2, line 6, at end insert— ("Provided that it shall be sufficient for bona-fide museums with existing collections of birds and eggs of wild birds to show that these birds or eggs were in their possession before the passing of this Act.")

The noble Lord said: In moving this amendment I should point out that I am not an egg collector myself, but rather I speak as a member of the council of the Museums' Association, which is most concerned with this point. Your Lordships will no doubt be aware that over the years many museums in this country, both large and small, have accumulated from various sources collections of birds' eggs and other articles. Sometimes these were collected by intrepid Victorian collectors; some have resulted from a local historic house that has been broken up, some have been collected by local schoolchildren, and some have even come as bequests. Therefore, it would be very difficult in the future for museums to prove the source of their eggs, if indeed it was known. The cataloguing and listing of such eggs now would also be a very time-consuming process.

Therefore, we ask that if such a situation does arise in the future, a sworn affidavit would be sufficient as evidence that those eggs did exist in the collection prior to the Act coming into force. I am sure that we can rely on the honesty of our museum directors. The Museums' Association is certainly confident of the high standard of its museum directors and of their ethical responsibilities. I do not know what can be said about the private collector; perhaps the Government could give some advice here. But unless he is very careful, he too could run into trouble with his grandfather's collection. I beg to move.

Lord Kilmarnock

Very briefly, I should like to support the noble Lord, Lord Montagu of Beaulieu, on this amendment. I have read with considerable care both the Bill and the notes which have been kindly provided by the Government for the use of this House and during the Committee stage, and it would seem to me that the museum authorities and, indeed, private collectors are, as the noble Lord has pointed out, at any rate technically at risk. I therefore hope that we shall be able to get some assurance from the Government that this position will be covered satisfactorily.

Lord Avebury

I have not had the advantage of reading the Notes on Clauses, and that is my fault because I have no doubt they are available in the Printed Paper Office, so I beg the noble Lord's forgiveness if the point I am about to raise is already dealt with there. It seems to me from reading this subsection that the onus of proof is placed squarely on the person in whose possession the objects are found. I wonder why it was necessary to have a double negative in line 3 of subsection (2), not shown to have been killed or taken otherwise than in contravention"?— unless my interpretation is correct. If we left out the words "not" and "otherwise than" so that it reads, egg of a wild bird which is … shown to have been killed or taken … in contravention of any provision of this Part", then such altered wording would require the prosecution to show that the wild bird, or egg of a wild bird, has been killed or taken in contravention of the Acts, whereas as the wording stands at the moment a museum, such as is mentioned in the amendment, would have to establish before the court that it had obtained the articles in question otherwise than in contravention of the Acts. This seems to run contrary to the general principle of the law that the prosecution has to establish a person's guilt rather than that he should be required to prove his innocence. If that is so, then I certainly think that amendments of the kind the noble Lord has just put forward do not go far enough, and that we should look at the whole wording of the subsection to change the onus of proof.

Lord Donaldson of Kingsbridge

We would support this amendment subject to one or two points. First, it is clear to us that the burden of proof should be on museums as is stated in the amendment. Secondly, I can speak for the integrity of museum collectors as I have had a lot to do with them in the last few years, but I think that the word "bona-fide" needs a little bit of definition because there are people who have collections and who say, "Come and see my museum" and they are not bona-fide museums. I do not quite know how we can get over this, but I should like to know what the Government think about it.

Lord Mowbray and Stourton

I support the principle behind this amendment, but I think that the private person is in need of help in this matter. This amendment covers only museums. I think that the private person who, as one noble Lord said, may have had a grandfather who had a collection, needs protection too. This is an important matter because the law has always been, as I have understood it, that one is innocent until proved guilty. Why the onus should suddenly be put the other way round I cannot imagine.

Lord Kilbracken

The principle behind this proposal is very good, but is the drafting satisfactory? Should it not be necessary to show that the eggs were taken, or the wild bird was taken, before the passage of the 1954 and 1967 Acts as well? Some similar amendment seems to be necessary in Clause 6(1) which refers to the selling of birds' eggs, and similarly it should be stated that if these eggs were in the possession of collectors before the 1954 Act came into operation it is legal to sell them.

The Earl of Avon

I am grateful to noble Lords for their contributions on this interesting topic. I particularly thank the noble Lord, Lord Donaldson, for his comment about the legal onus being on the museums. I am grateful to my noble friend Lord Montagu for tabling this amendment, although I shall ask and try to persuade your Lordships to reject it, or my noble friend to withdraw it. I am grateful because we are aware that there has been some concern in museum circles about their position under the provisions of Clause 1(2). It may be helpful first, though, to mention the technicality which concerns us with this amendment.

In the United States they have a provision in one of their endangered species laws making this sort of provision for museums. To their consternation a safari club of big game hunters registered as a museum —a bona fide museum, no doubt—and promptly used the provision to import their trophies. Should a case come to court, we believe that it would be sufficient for a museum to have kept proper records of all eggs received after the enactment of this Bill and to swear an affidavit—which is what my noble friend asked for—that all other eggs in its possession were held before the Act's provisions applied to them nor were the eggs taken in breach of the provisions—and this is Lord Kilbracken's point—of the 1954 to 1967 Acts. I understand that museums have recently been advised that for their own protection they should keep good records, mark and photograph their property, and this procedure should certainly reinforce their position. I can only say in regard to private collectors that I am sure that most of them would want to keep the same sort of records themselves and might take the same advice.

My department has been in consultation with the Biological Curators' Group about a scheme proposed by some of them for a voluntary registration scheme which would allow not only museums but those with private collections made before the Acts prohibited the collection of the eggs of wild birds, to establish that these eggs were indeed in possession and not obtained or kept contrary to the 1954 to 1967 Acts, or the new and deliberately tougher provisions which are required to meet our obligations under the directive. We believe that this amendment creates as many problems as it attempts to solve, and so I hope with this confirmation from the Government that such pre-Act collections are not intended and not likely to be the subject of prosecutions that the proposers of this amendment will be content and that this amendment can be withdrawn.

Lord Montagu of Beaulieu

I thank my noble friend for that answer. His answer will be carefully studied by those concerned, and with the leave of the Committee I should like to withdraw this amendment.

Amendment, by leave, withdrawn.

3.17 p.m.

Lord Renton moved Amendment No. 3: Page 2, line 7, leave out subsection (3).

The noble Lord said: In moving this amendment I invite your Lordships to consider a somewhat basic matter; namely, whether the penal provisions of this Bill could be simplified and strengthened. As the Bill stands it provides in Clause 19 different penalties for dealing with offences against wild birds compared with wild animals in the sense—and it is on summary conviction, in any event—that so far as wild birds are concerned there is to be a general penalty of only £50 and a special penalty, a £500 fine or three months' imprisonment, or both, for offences against those wild birds which are mentioned in the first schedule. By contrast, so far as offences against wild animals or plants are concerned, there is a general penalty of £500. Very sensible. No special penalty there.

This complication, which I suggest is unnecessary, is, as many of your Lordships know, derived from the Protection of Birds Act, 1954. So far as I remember, this differentiation has no exact counterpart in other legislation, and it is contrary to current legal thought and practice as reflected in dozens of statutes. Indeed, the better view is that the courts should be given wide enough powers to deal with the worst cases, and that of course enables them to deal less severely within those powers, and at their discretion, with the less serious cases. This is what will happen so far as offences against animals and plants are concerned, and one wonders why it should not happen in a similar way with regard to offences against birds.

I suggest therefore that the special penalty of £500 or three months' imprisonment, or both, so far as birds are concerned should become a general one and that the £50 general penalty, which is really sometimes likely to be inadequate, should be done away with. Your Lordships will of course bear in mind in this matter that in any event the greater includes the less.

I acknowledge that although the amendment is a peg on which to hang a brief discussion on this important matter, it could not stand by itself. If it were accepted there would have to be some major redrafting of Clauses 1 and 2 and of the first schedule and no doubt other consequential amendments would be necessary as well. But, if what I have suggested is right in principle, we should not jib at the major redrafting that would be involved, and, accordingly, I beg to move.

Lord Melchett

I was interested to hear what the noble Lord, Lord Renton, said, and, while I agree that he has raised a quite major issue which would need careful scrutiny throughout the Bill if it were accepted, I rise to make an additional point which was due to be raised on later amendments that we have tabled to the maximum penalties in the clause where they are spelt out. I notice in other recent Acts of Parliament that reference is made to the statutory maximum laid down in the Criminal Law Act, the year of which escapes me temporarily, but no doubt other noble Lords and particularly Lord Renton will know the Act to which I am referring. I understand that that has the enormous advantage that penalties are increased for a whole range of offences to keep pace with inflation and the changing value of money.

As noble Lords with much longer experience than I, in particular of the Protection of Birds Acts, will know, there have been enormous problems over the years with keeping the penalties under those Acts up to date. The price obtainable for illegally taken birds and birds eggs has often far exceeded the maximum fines laid down, and it seemed to us that it would be worth looking at the possibility here of making the fine £1,000, which I believe is the current statutory maximum. We on this side would be happier to see the emphasis on a higher monetary penalty where people have stolen things of this sort—for example, young peregrine falcons now sell to dealers from abroad for £1,000—and rather less emphasis placed on imprisonment, which seems not entirely appropriate for offences of this sort. Perhaps when looking at the point raised by the noble Lord, Lord Renton, the Minister will cast his mind over the point I have raised, which would solve many problems for the future.

The Earl of Onslow

I have recently been reading a book on hawking in the Middle East and it seems that sheiks there will pay more than £1,000 for peregrine falcons; indeed, they are fetching £2,000 to £3,000 apiece. If somebody raids a nest and takes, say, two baby peregrine falcons from it and sells them abroad, they will obviously make far more than the maximum fine, and that seems totally wrong. We should increase the maximum fine so that it is 50 to 100 per cent. more than the maximum market value, and then it might act as a deterrent.

The Earl of Avon

I am grateful to my noble friend Lord Renton once more for raising an interesting topic. At the outset may I say that the differences between the various fines are intentional, because there are some things which we think are much worse than others, and they are graded for that particular reason. Having said that, this special penalty, which has a maximum fine of £500 and three months' imprisonment, as my noble friend said, already exists under the Protection of Birds Act and to abolish it at this time, when there is a growing demand for tougher penalties for offences against birds, would be an unacceptable and retrograde step.

Lord Avebury

Can the Minister say how often sentences of imprisonment have been imposed under the existing legislation?

The Earl of Avon

I do not have figures in front of me, but I will let the noble Lord know. I read in the newspapers the other day of a £500 fine and a two months' suspended sentence being given. I am told that the going price for the sale of some rarer birds to be afforded special protection is already approaching the level of the maximum fine, and I was grateful to hear from my noble friend Lord Onslow that it is already above the maximum fine; so the point is doubly made. However, the Government feel it is essential to maintain this penalty. I will take advice from the Home Office on the points raised by my noble friend Lord Renton, and no doubt on later amendments we shall be discussing whether or not the figures should be increased.

Lord Renton

I am grateful to my noble friend for saying that he will consider the matter further. Perhaps I might correct what appears to be a wrong impression which no doubt unintentionally he gave. He said my proposal would mean abolishing the penalty of £500 arising under the Protection of Birds Act. It would not. It would mean merely that we did away with the small general penalty of £50, which is insufficient in many cases, and we should thereby be ensuring that those cases under the Bill which would be covered by the £50 penalty would in future be covered by at least the £500 penalty. We should be clear about that.

I am grateful to the noble Lord, Lord Melchett, and my noble friend Lord Onslow for the separate but related points each of them made and which have an important bearing on the vital question of what the penalties under the Bill should be. It is no good our enacting legislation unless we have the sanctions to enforce it. When considering my amendment further, I hope that my noble friend will also bear in mind the points made by those noble Lords. On the assurance that has been given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.27 p.m.

The Earl of Avon moved Amendment No. 4: Page 2, line 15, leave out ("unflown").

The noble Earl said: In speaking to Amendment No. 4 it might be for the convenience of the Committee if I spoke also to Amendment No. 28. The purpose of Clause 1(4)(a) is to prevent the disturbance of a specially protected bird while it is building a nest or is on or near a nest containing eggs or young. The epithet "unflown" was used in Section 4(1) of the Protection of Birds Act 1967, but is considered undesirable in so far as it allows for argument about whether a young bird has flown or not. It is virtually impossible to determine whether a young bird still in the nest has flown or not, and of course many young birds return to the nest after they have learned to fly. The deletion of the word "unflown" would, I submit, improve the protection afforded to Schedule 1 birds. I beg to move.

On Question, amendment agreed to.

3.28 p.m.

The Earl of Avon moved Amendment No. 5: Page 2, line 16, leave out ("unfledged").

The noble Earl said: I think it would be for the convenience of the Committee if I spoke at the same time to Amendment No. 29. The purpose of this amendment, No. 5, is similar to the purpose of Amendment No. 4. Clause 1(4)(b) is designed to protect the young of a specially protected bird while they are in or near a nest. It derives from the provisions of the Protection of Birds Act 1967. Since including the word "unfledged" in the draft, we have realised that birds do not leave the nest as soon as they become fledged and that, as drafted, young birds could therefore cease to be protected when they have feathers even though they are still dependent upon their parents and are in or near the nest. We feel that complete protection should be given to all young birds of specially protected species. I beg to move.

Lord Kilbracken

While I agree completely with the Minister, may I suggest there should be a definite article to replace the word "unfledged", otherwise it just reads "disturbs young"?

On Question, amendment agreed to.

3.30 p.m.

The Earl of Cranbrook moved Amendment No. 6: Page 2, line 16, leave out ("unfledged") and insert ("dependent").

The noble Earl said: I beg to move the amendment standing in my name on the Marshalled List. It will be apparent to your Lordships that I strongly support my noble friend on the Front Bench who has just spoken, since the first part of my amendment also encompasses the amendment that he has just moved. However, I would point out that there are biological problems—and this is perhaps the first of many instances which we shall encounter—when we try to accord biological facts with legislative processes, and it is in this vein that I wish briefly to address your Lordships' Committee.

The intent of the amendment to which your Lordships' Committee has just agreed is very clear, but there are certain biological aspects of birds which make it difficult to apply. The adornment of the word "young" by use of the additional article "the" may still be inadequate because many birds adopt a plumage which is recognisably that of a young bird long after they have left the nest, and therefore, as will be seen from my amendment, I have suggested the insertion of the word "dependent".

In biology the concept of a dependent young bird is very clear and is distinguished from that of an independent young bird, though in plumage those two stages in a bird's life are not immediately distinguishable. The protection is required for the young bird before it is capable of looking after itself, and this I take it to be the Government's intention. I must ask your Lordships' Committee whether the word "dependent", which, as I said, has a clear meaning to ornithologists, is also unambiguous in law. That will do for the time being. I beg to move.

The Chairman of Committees

Since the word "unfledged" has already been omitted, this amendment now reads,

"Page 2, line 16, after 'disturbs' insert dependent' ".

Lord Melchett

I should like very strongly to support the noble Earl, Lord Cranbrook. As I understand the position—perhaps this is what the noble Earl was going to say when he stopped speaking, and so I shall say it myself, and he or the Government can contradict me if I am wrong—this proposal would cover the situation in which a number of birds would be placed where the mother bird and the young would leave the nest as soon as possible after the eggs have been hatched, for fairly obvious reasons of safety. This is true of common game birds, many waders, and other birds. The phrase "while in or near the nest" would not, I understand, be appropriate for those species, whereas the word "dependent" certainly would be. It seems to me that the noble Earl's amendment makes much more sense; as he said, it meets a situation in which many young birds will find themselves, and I hope that the Government will be able to accept it.

The Earl of Cranbrook

I wonder whether it would be appropriate to couple my Amendment No. 6 with my Amendment No. 7? I feel that it would be, since this is the point which the noble Lord opposite has just taken into account and in regard to which I stopped rather abruptly before wandering on to it. So, with the permission of the Committee, I would point out that the biological difference to which the noble Lord has drawn attention applies to 30 of the 85 species of birds listed in Schedule 1. That is to say, of the 85 species of birds—in respect of which we are agreed it is the intention of the clause to apply protection to the young while they are still in a state of requiring the care and attention of their parents in order to survive—30 young birds leave the nest as soon as they hatch. They are then led, shepherded, by an attendant parent, often for considerable distances from the nest. In the case of water birds, for instance, the first journey of hatchlings might be of many yards from the nest site to the water. Such birds remain totally dependent on the parent bird for warmth at night, by brooding, or for simple instructions on how to find food and so on.

While I apologise for the fact that in a sense my Amendment No. 7 anticipates Amendment No. 8 by including the word "in" instead of the word "on", I should like to couple Amendment No. 7 with Amendment No. 6.

The Earl of Avon

I appreciate, and sympathise with, the intention behind the amendment; namely, to ensure that the young which leave the nest very shortly after being born and, consequently, may be found neither in or near a nest, receive protection against disturbance. As I think my noble friend anticipated, there is some difficulty in finding words which will ensure that protection is given to both the nidifugous young and the remainder. I fear, however, that the word "dependent" may give rise to problems in deciding which young are dependent and which young are not dependent. There may also be a question as to whether protection should be confined to dependent young. The answer may perhaps be to refer simply to disturbing the young of such a bird, without reference to its nest. I should like to invite my noble friend to withdraw his amendment on the basis that the Government will give the matter further consideration.

The Earl of Cranbrook

I take note of my noble friend's words, which seem very much to encompass the greater part of my Amendment No. 7, and in anticipation of seeing future action from the Government I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

3.36 p.m.

The Earl of Avon moved Amendment No. 8: Page 2, line 17, leave out ("on") and insert ("in").

The noble Earl said: This is a very short amendment, and I am grateful to the noble Lord, Lord Kilbracken, for suggesting it. It is one which the Government are happy to put forward. I beg to move.

Viscount Massereene and Ferrard

I do not want to disagree with my noble friend on the Front Bench, but surely "on" is a far more catholic word for the purpose of trying to express what the Bill is seeking to achieve. Many birds, especially sea birds, and a considerable number of birds that are listed in Schedule 1, lay their eggs on a flat surface. The so-called nest is perhaps only a few bits of grass or perhaps a bit of down, and the birds are not "in" a nest, they are "on" a nest. One cannot be "in" a flat surface. I agree that a bird such as a wood pigeon is "in" a nest, as are various other birds, such as a crow, but a puffin is in a hole, and so is a shearwater. But one cannot be "in" a flat surface. Perhaps my noble friend can, but I should be very interested to discover how. Therefore with due respect, I would say that in this instance "on" is a far better word for the purpose of expressing what we want to achieve.

Lord Renton

Would not the simple solution be to use both words, so that the provision read "in, or on"?

The Earl of Avon

I am grateful to my noble friends for those comments, and since we are considering redrafting this particular sentence, perhaps we could leave it to then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.38 p.m.

Lord Kilbracken moved Amendment No. 9:

Page 2, line 18, at end insert— ("( ) Any wild bird of a species that is not ordinarily resident in or is not a regular visitor to Great Britain in a wild state, and is not included in Schedule 1, shall be treated as though it were so included.").

The noble Lord said: Schedule 1 contains a list of the different species of birds which are protected by means of special penalties to be imposed on anyone found guilty of killing them. At first the list appears to be rather strange because it includes very common species, such as the fieldfare and redwing, other birds that are not so common, and some that are extremely rare. But I understand that the Government's intention is to protect those birds that are very infrequent breeders in Britain, irrespective of how common or rare they may be during the rest of the year.

As a matter of fact several of the species in Schedule I have never bred in Britain—birds such as the bluethroat, the purple heron, and the spoonbill, but I suppose that they may have been included in the list because there is a possibility that they may breed here at some future date. However, the position is that if a bird is quite common but breeds here only occasionally it is listed, but if it never breeds here, yet is extremely rare, it has no special protection at all.

The purpose of my amendment would be to include automatically among the species that have this special protection any bird "that is not ordinarily resident in or is not a regular visitor to Great Britain in a wild state". There are just under 500 species on the British list at present, and something over 200 of those are reasonably common. In my opinion all the others—in other words, all but the 200-odd which are reasonably common—should be covered by Schedule 1; and also any other rare birds that have not yet appeared in Britain. This would be the case if the amendment I am proposing were accepted: not only such rarities as the collared flycatcher or the multicoloured roller—"multicoloured" is my adjective; it is not part of the description of the species—which at present have no special protection at all because they never happen to have bred here. I hate to think of some very rare species appearing here—perhaps a couple of birds which may attempt to breed, or which may have come only on a short visit, and which would then go back from being here during the winter, perhaps, to their natural habitat to breed there—and there being no special protection for them while they are in Britain.

One way of coping with that situation if the general principle was agreed would be to add a couple of hundred names to Schedule 1, but that is obviously unsatisfactory. My proposal would cover all such birds without having to list them in Schedule 1, and would also incidentally mean that a large number of birds could be deleted from Schedule 1 because they would be covered by my amendment. This amendment should be considered in conjunction with my Amendment No. 374, which deletes the word "ordinarily" from the definition of a wild bird in Clause 25, on page 23. So the definition of a wild bird would then read, any bird of a kind which is resident in or is a visitor to Great Britain in a wild state", and birds which are not ordinarily resident or are not regular visitors would be covered by my amendment. I beg to move.

Viscount Massereene and Ferrard

I should like to support this amendment very shortly. Once, about seven or eight years ago, on the Isle of Mull at a place called Loch Don, we had a lot of ibis which suddenly arrived in October. I do not know where they came from, but they caused great excitement. They presumably came from North Africa or Southern Spain. I will not speak any further on this amendment, but I should like to say that I support it because we do sometimes get extraordinary visitors—bird visitors and human visitors, too.

The Earl of Avon

This amendment would, of course, have the effect of giving a higher level of protection to offences in relation to vagrants. Vagrants are classified with individuals which have usually become disorientated and have little chance of surviving to find their way back to their proper range. A variety of North American birds occur in small numbers in Britain each year, but there is only one proven breeding record in Britain by these birds. It is our contention that the birds have no conservation importance as they are very unlikely to survive to breed. Giving them special protection would not alter this, though like all birds that come to our shores they automatically receive ordinary protection, which makes it an offence to intentionally kill them.

We do not therefore consider that they warrant the special protection given to rare breeding species; and we do not want to devalue the special protection given by Schedule 1. We looked hard at this when the Bill was being drafted, and concluded that any gain would be far outweighed by the loss of clarity and certainty. I therefore very much hope that the noble Lord will be prepared to withdraw his amendment.

Lord Kilbracken

I am grateful to the noble Earl. I am also grateful to the noble Viscount for his support. I should like to point out that it is not only vagrants and so-called wanderers which would be covered by this amendment, but also birds much less scarce than that—birds of the sort which are said to be of annual occurrence, of which there are a great many on the list. I could read out the red-footed falcon, the golden pheasant and the petrel fanpiper, among others; but in view of what the noble Earl has said I of course do not intent to persist in my amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

3.46 p.m.

Lord Beaumont of Whitley moved Amendment No. 10:

Page 2, line 18, at end insert— ("( ) Subject to the provisions of this part of this Act, if any person shoots any wild bird between the expiration of the first hour after sunset and the commencement of the last hour before sunrise he shall be guilty of an offence.").

The noble Lord said: At present, during the open season birds listed in Schedule 3 to the Protection of Birds Act 1954 can be shot at all times of the day and night. Incidentally, the same applies also to game birds and to other kinds of game dealt with under the Game Acts, but these are not the subject of my amendment. The shooting of wildfowl and waders at night is not as selective as it ought to be, and it is very easy for protected species to be shot by mistake. Even in good moonlight the colour drains out, and it is very easy to make that kind of mistake, particularly because a certain amount of the shooting, especially when there is not moonlight, can be of the rather hurried snap-shot type. In addition to the possibility of making errors in the type of bird and of shooting rare birds by mistake, there is, of course, also the perfectly ordinary straightforward objection that there will be more wounded birds, which is something that no sportsman or anyone else wants to see.

We are just about the only country in our part of Western Europe, certainly, to allow shooting at night. Every single other member of the EEC, including our immediate future partners, ban this kind of shooting, and we are alone in not doing so. This is also true of the USA and Canada, two countries which are very diligent in promoting and enforcing their conservation laws. It will have been noted that this amendment is framed purposely to avoid the exclusion of flight shooting in the immediate pre-dawn and post-sunset periods—not that there are not good arguments against that; in fact, the arguments which I have been putting forward. But this is such an established and well-accepted part of the sport, and is so popular, that in this amendment, which I admit to be not the most important that will be coming before your Lordships tonight, it did not seem right to make a head-on attack on these particular practices. But I think that, within its limits, it is a useful amendment. I commend it to the Committee and I beg to move.

Lord Somers

I hope sincerely that the Government will accept this amendment, because it is quite obvious to anyone, surely, that when the light begins to go you cannot distinguish between one bird and another except by size. Therefore, if we are going to enforce any kind of bird protection this must surely be one way in which to do it.

Lord Houghton of Sowerby

My amendment No. 11 is identical to this amendment, which I therefore support. When the Ground Game Bill was under discussion in the last Session we were discussing the so-called anomaly in the law that ground game could be shot at night by owners of land but occupiers of land were barred by the Ground Game Act 1880. One of the arguments put for the regularisation of the law and the removal of the anomaly was that there was no restriction on the shooting of birds at night. It seemed anomalous to allow people to shoot birds at night and have any restrictions on the shooting of ground game at night. One virtue about this amendment is that it removes one of the arguments in favour of the wider extension of the right to shoot ground game at night.

In the past the House of Lords has been the place from which all the big shots have come. It has a mistaken reputation for being in defence of the great sports of England. I sincerely hope that gradually we are all—even in the House of Lords—becoming more civilised on a matter of this kind and that we can look at this now from a more enlightened point of view.

Another point on this amendment is that there is far too much danger from firearms abroad in the land today. There are far too many crimes of violence involving the use of firearms. Anything that can be done to curb crimes with the use of firearms should be done. It would be desirable for any shot heard at night to be presumed to be an unlawful act. Then perhaps there would be a greater possibility of identifying what crimes are being commited at night with the use of firearms.

The United States is perhaps the worst country in the word for the free use of firearms. Our television screens are littered with Americans shooting at other Americans. There is always a gun to be whipped out of a pocket or a holster in an American gangster film. This is what enlightened England is now swallowing night by night as a path to glory. We are probably going to get it at breakfast time as well as later on in the day. To be quite serious, there is no justification for firearms being used at night to kill birds or, for that matter, animals any more than there is any right to use firearms at night to shoot human beings. On those grounds, I think that this amendment has every virtue. It is the first amendment of the afternoon which will arouse any passion in the Committee. I hope we can ban shooting birds at night.

Viscount Massereene and Ferrard

I cannot support this amendment the whole way. I can support it 90 per cent. Regarding wildfowl, there are some, such as the widgeon and the pink foot goose, which one can only shoot at night. The noble Lord, Lord Somers, was saying that if one shoots at night, say on the mud flats, at widgeon, then one might shoot other birds. But that is not so if you are a proper sportsman, because you only shoot widgeon if the tide, moon and clouds are right. You have to have white cloud otherwise you cannot see anything. This only happens perhaps two or three times a month, and it is an extremely manly and skilful sport carried out by people who are extremely keen and who know how to do this.

The noble Lord implied that one would not know one was shooting at a widgeon; but you can tell a widgeon if you are an expert and presumably only such people pursue the sport. You can tell them by the way they fly and also by the call of the cock widgeon. I think it would be a great pity to prevent this sport. You would only shoot three or four in a night, if you were lucky. You would have to be on the mud flats at low tide and with the right phase of moon. You also have to have the right clouds. It would be a great pity if this extremely manly sport were prevented. With pink foot geese, you usually flight them at night under the same conditions, but on the wheat stubble. It would be a great pity to prevent this. I agree with what has been said regarding other birds; for instance, anyone who shoots a roosting bird or any other bird on the ground at night ought to be severely dealt with. I would make this exception for wildfowl.

Lord Mackie of Benshie

I must put in a personal plea to say that the amendment is slightly illogical. I say to the noble Lord, Lord Houghton, that although people may go about shooting each other with shotguns in Sowerby, in the parish of Kirriemuir and the glens of Angus they rarely do so, and they treat their guns, as they treat their sport, with a great deal of respect. The amendment gives an hour at night and in the morning, but as anyone who has ever flighted duck knows, it can be too dark half an hour after sunset. Certainly in the morning it is very often too dark to shoot properly, but not to recognise birds. One can nearly always recognise the birds, (a) because one knows the birds that come in, and (b) because one can recognise the habit of flight. Indeed, shooting fighting birds by moonlight, you can see very much better in nearly every case than you can when it is too early or getting too late. The amendment is slightly illogical and I resent somewhat the imputation of the habits of the inhabitants of Kirriemuir.

Lord Gibson-Watt

May I say to the noble Lord, Lord Houghton, that I do not think that either of these two amendments have much to do with ground game, or for that matter with red herrings. They deal entirely with the problem of wildfowling on the marshes. Other noble Lords have also said something about this. Those who carry out this particular pastime are extremely hardy young men. No doubt some of us used to do it a good long time ago; I certainly did, but do not any longer. I agree with what has been said by the noble Lord opposite, that if you were to carry out the provisions of this amendment, you would prevent wildfowling by moonlight. I doubt very much whether expert wildfowlers shoot a lot of rare birds that they should not do. Today, as a result of the efforts of WAGBI, the advice and control over wild-fowling is far greater than it was 10 years ago. For these and for other reasons (with which I shall not detain the Committee) I hope that we shall not follow this amendment.

The Duke of Atholl

May I make one further point why this amendment should not be carried? It would make the job of keepers and shepherds appreciably more difficult. Wet lambs are often attacked at night by crows and if this amendment were carried shepherds would not be able to shoot the crows at night. Perhaps the noble Lord, Lord Beaumont of Whitley, can tell me I am wrong, but I believe that to be the case. This would obviously make the job of both shepherds and keepers (who have a difficult enough job anyway) that much more difficult. I hope the amendment will not be carried.

4 p.m.

Lord Buxton of Alsa

May I take one point which has not been mentioned? I should dearly love to hold forth for half an hour about wildfowling at night, but I will concentrate on the aspect that has not been mentioned. The RSPB, the Nature Conservancy and so forth have no more ardent supporter than myself. For a number of years I have also been a vice-president of the Wildfowlers Association. I therefore hope to give you an entirely objective view. The damage and disturbance done is obviously not understood by the noble Lords who moved these amendments. The damage is absolutely minimal, as has been mentioned before, because the right opportunities are so rare and the people involved, say one of these intrepid young wildfowlers, only perhaps get one good evening a year—perhaps not that.

But that is not my main point. I believe that if we passed this amendment it would be grossly unfair to a very small section of the community—grossly unfair in that they are a band of people around the coast, dedicated enthusiasts, and extremely few of them, who own not a single inch of this land and have nowhere else to go. There are many of us here who have opportunities on flight ponds, lakes and marshes inside the sea wall and inland, but the people who go on these rare occasions out on to the marshes and saltings have no such opportunities. Most of them are wage-earners and hardworking people and perhaps they cannot even get away at weekends, and perhaps most of the time there is no moon at weekends. The one opportunity this handful of people have is occasionally going out at night, and it is my view as a conservationist and ornithologist as well as sportsman, that they do very little harm indeed.

I should like to put in a plea that we do not penalise one small group of people when we are not even considering the others. As to ground game, what about the farmers, the NFU, the CLA, and the importance of killing rabbits at night with Land Rovers? It would be monstrous if that were allowed to go on and this little band of people were not allowed to shoot on the rare occasions when they are able.

Earl Peel

If I may, I should like to add one further point to what the noble Lord, Lord Buxton, has said. In view of the fact that this Bill is largely to try to bring us into line with Europe, it is my knowledge that this particular point is not disputed in any of the EEC directives.

Lord Melchett

It may not be disputed, as the noble Earl says, in any of the EEC directives, but, as the noble Lord, Lord Beaumont, and my noble friend Lord Houghton said in moving the amendment, this practice is forbidden in a very large number of European countries. In fact it is forbidden in Sweden, the USSR, Czechoslovakia, the German Democratic Republic, Romania, Denmark, Luxembourg, Holland, Belgium, Ireland, France in most departments, Switzerland, Austria, Portugal, Spain, Italy, Greece and Turkey. It is partially banned in Poland and Yugoslavia.

In spite of what the noble Lord, Lord Buxton, said, with which I personally have considerable sympathy, it seems to me that those who take a particular interest in field sports and shooting in this country are in danger of getting themselves a very long way out of line with the widely accepted practices of the rest of Europe and our neighbours. That seems to me to be only to the bad. Indeed, as I understand it, the practice is not universally permitted in England and Wales. Various people who own parts of the foreshore with rights over them take different points of view of the rightness or wrongness of night shooting. I understand that there are some areas of England and Wales where it is not permitted.

The noble Lord, Lord Mackie, apparently took some offence at what my noble friend Lord Houghton may or may not have been suggesting about the habits of the inhabitants of Kirriemuir. My information is that if any of those inhabitants are out shooting at night they are breaking the law because, as I understand it, all shooting in Scotland between one hour after sunset and before sunrise is officially proscribed. The noble Lord, Lord Mackie, and his fellow inhabitants of that important part of Scotland, may be taking some comfort from the fact that the police apparently —this is according to an article in this month's Sporting Gun—do not enforce that particular part of the law with any great vigour. Nevertheless, breaking the law is—

Lord Paget of Northampton

Does that not really illustrate the objections to this proposal because it is totally unenforceable? In Scotland they are protesting that it is being stopped and it is illegal already.

Lord Melchett

Now that the noble Lord, Lord Mackie, has drawn attention to the fact that the law is being broken in that particular part of Scotland, I have no doubt that the authorities will follow up the matter very speedily. I would not accept—

Lord Mackie of Benshie

I did not say that the inhabitants of Kirriemuir or anywhere else were breaking the law at night. What I said was that it was equally bad. You could wound more birds half an hour after sunset on certain nights than you could shooting in the full moon. I never admitted in any form that the inhabitants of Kirriemuir shot in the full moon. I merely pointed out the obvious point that more harm and more cruelty could be caused by shooting in bad light under an hour or so after sunset or before sunrise.

Lord Melchett

I should like quickly to turn to the point made by the noble Viscount, Lord Massereene and Ferrard, about the possibility of shooting things which it was illegal to shoot. I understood the noble Viscount to say that was not likely to happen because there were only one or two species that were likely to figure in the bag of people shooting during the night by the light of the moon. But again the article in Sporting Gun said that, although widgeon and grey geese are the primary quarry species, mallard, teal and pintail feature regularly in the bag as well. It seems to me that the main objection to this procedure, apart from those which have already been mentioned, must be that the species which it is illegal to shoot will get shot. I appreciate, as the noble Lord, Lord Mackie, has said, that it is possible for that to happen within an hour of sunset or sunrise, though I would not have thought that within an hour was all that usual from my own experience. However, it seems to me there is a great deal of merit in this proposal and I very much hope that the Government will accept the amendment.

Lord Mowbray and Stourton

The noble Lord, Lord Beaumont, distinctly said he was not aiming at wildfowling or flighting; yet other noble Lords have particularly aimed their shafts at those particular sports. Noble Lords should know that people who go wildfowling or flighting in their own areas really do know the birds in those areas. The idea that you go out not knowing what birds are coming in is slightly ludicrous to anyone who lives in the country. If you live in an area, you know what is coming in. My noble friend Lord Mackie of Benshie has been assailed about shooting in Kirriemuir. I know that it is a great place with a great ballad, but nobody supposes that he or I would shoot in Kirriemuir itself. We live outside it—he lives only two or three miles out, and I live about nine miles away. In the Vale of Angus we know what is happening and I should like to say to the noble Lord, Lord Melchett, that I do not really believe what he said is true. I do not believe that shooting and wild fighting in Scotland is illegal. I have never heard that before. The idea that wild and indiscriminate shooting goes on is ludicrous. The law is a perfectly sensible, useful and essential thing in life, but when we start inventing offences which are not being committed, I suggest we are getting rather beyond the bounds of common sense.

Lord Leatherland

May I say a few words on behalf of courting couples? Of course, my memory is not what it used to be, but I believe sometimes these well-intentioned young people sit under hedgerows at night and they want to be able to sit there peaceably and be uninterrupted. Just think what would happen if at some emotional moment there was a shot and they were peppered with pellets from 20 yards away. There is grave danger, not only to that type of respectable person but to the public at large, if people are to be allowed to shoot at night. Your Lordships may say that they may be shooting in fields which are far removed from public roads, but people walk across fields at night and, sometimes, other people who are shooting go nearer to the public roads than we normally think they would. I think that there is a great danger. Shooting at night ought to be prohibited.

Lord Buxton of Alsa

May I just say that there is no known species on this planet that courts at night in 10 degrees of frost in January?

The Earl of Swinton

I find it very difficult to follow that one, especially if they were out on the mud flats. That would soon dampen down their amorous activities. I should like to take up one point which the noble Lord, Lord Melchett, made. He read out a most impressive list of countries. I cannot remember them all, but I think I heard Switzerland and Austria included. I do not think they have very large shorelines, anyway. But I do not think any of the countries on the list that he read out were islands. We have a particular habitat in this country, thank goodness, with a foreshore such as is not enjoyed so much by other European countries. So we are in a special position.

Lord Melchett

The noble Earl will have to study the list in Hansard, but Ireland was included, which I think would qualify as an island.

The Earl of Avon

We have gone through this very thoroughly, but there are one or two points which I do not think have been raised. I was expecting to have to deal with lots of chairmen and vice-chairmen of various conservation groups, but I was not expecting to meet the chairman of the Courting Couples' Association!

I think the noble Lord, Lord Beaumont, said that the amendment seeks to prohibit the shooting at night of any wildfowl. The Government took advice on this subject. They went to both of the advisory committees of the Nature Conservancy Council and they discussed the practice of night shooting. They all advised against a ban, as they were not satisfied that there was a conservation case for one. The word "conservation" should be remembered, when we are talking about sport—

Lord Melchett

I am sorry to interrupt the noble Earl, but can he confirm that, while the majority may have taken that view, the advisory committee were quite seriously split in giving this advice to the Government?

The Earl of Avon

The noble Lord is probably better informed than I on what took place then. I shall be happy to take his point. There are two other points which I should like to underline. First, it should be remembered that climatic conditions for birds in the United Kingdom are generally easier than in Continental countries. We like to think, in a way, that we lead the European community, and I do not think we should feel that we have to follow them in the way that some noble Lords have suggested. Secondly, we must also remember that, in practice, shooting under the moon is possible on only a few nights in winter. Its practitioners are few and, for the most part, the most skilled of wildfowlers. Indiscriminate and unselective shooting is far more likely from those who know little about the sport or about birds. I very much hope that, after hearing the views expressed in the Committee, the noble Lord, Lord Beaumont, may feel able to withdraw his amendment.

Lord Beaumont of Whitley

We have had a very interesting debate on this point. Sometimes, the case against this amendment has been slightly exaggerated. One would have thought, from what the noble Lord, Lord Mowbray, said, that no mistakes at all are made in situations such as this. My father owned one of the two sloughs in Wexford, one of the very best for wildfowl shooting in the whole United Kingdom, and there were occasions when mistakes were made by even the best shots. But I entirely take the point of the noble Lord, Lord Mackie, about the period for flighting being in some ways just as objectionable—or as unobjectionable, as he would possibly put it—as the night-time.

Before I beg leave to withdraw this amendment—because it is not one of the most important and we have had a fair reply by the Government and a fair division of opinion in this Committee—I just want to clear up the fact that the noble Lord, Lord Houghton, and I have put down identical amendments. I am not seeking to stir up anything, but when I asked advice about this I was told that at the Marshalled List stage these two amendments would be conflated, whereas in fact they have both been put in although they are completely identical. If I had not been assured about that, I should have consulted the noble Lord, Lord Houghton, which I have not done. I imagine that I am right in seeking your Lordships' permission to withdraw my amendment, The noble Lord, Lord Houghton, will then be free to move his amendment if he wants to do so, seeing that it is still down. I see the noble Lord the Lord Chairman nodding his head, and in that case I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

The Chairman of Committees

I have to point out that, if Amendment No. 12 is agreed to, I cannot call Amendment No. 13.

4.15 p.m.

Lord Houghton of Sowerby moved Amendment No. 12: Page 2, line 19, leave out subsection (5).

The noble Lord said: This is a small point that I raise, but I am not quite sure what subsection (5) at page 2, line 19, means. Are we referring to a bird that is being bred in captivity, or are we referring to a bird which has been bred in captivity? There is a difference between the two. Any bird which has been bred in captivity and has been returned to the wild will be covered by the subsection, but any bird which is being bred in captivity will clearly not be within its scope. Anyone can go and molest a pheasant's nest, if the pheasant is being bred in captivity. Perhaps the Minister can dispose of this quite quickly by explaining what subsection (5) is intended to do. I have explained my own difficulty and, when in doubt as to the meaning of a clause, I think the best thing to do is to move to leave it out of the Bill. Then, if it has any real meaning, it can stay in. I beg to move.

The Earl of Avon

The intention behind this amendment is to apply the Clause 1 provisions to captive bred birds. We want wild birds not to be coupled with them. May I just say a word about pheasants, because they are covered by the Game Act and this clause would have nothing to do with the breeding of pheasants. So it is the captive bred birds which we are discussing. Does that help the noble Lord?

Lord Houghton of Sowerby

I understand that, but my point still remains. If any birds are bred in captivity and returned to the wild, then I presume that they are covered by the clause. If they are being bred in captivity, then they are not. Is that the position?

The Earl of Avon

I think it is the position, but if it is not I will get in touch with the noble Lord again.

The Chairman of Committees

Does the noble Lord wish to withdraw the amendment?

Lord Houghton of Sowerby

I am still not very clear, but we have a long way to go so I shall not hold up the Committee while we clear up this small point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.19 p.m.

Lord Beaumont of Whitley moved Amendment No. 13: Page 2, line 19, at end insert ("which is shown to have been").

The noble Lord said: Subsection (5), which we have been talking about, seeks to avoid the possibility of prosecutions being initiated for actions which were never intended to be unlawful through the scope of the Bill. It relates specifically to the possession of birds which have been lawfully bred in captivity, and to the disturbance of specially protected birds being bred in captivity. The motive behind it is laudable, but the drafting of this subsection seems bound to work in favour of the very persons whom the Bill seeks to control; namely, those who use captive breeding as an untrue excuse for the possession of illegally taken birds. This excuse is frequently heard, most particularly in relation to captive birds of prey. There are a number of cases on record where this has happened.

The wording of subsection (5), as drafted, permits a person under investigation to claim, rightly or wrongly, that a bird has been bred in captivity, and in such cases the very important provision in subsection (2), which determines that the burden of proof in respect of possession or control lies with the alleged offender, will be superseded. So the burden of proof will rest on the accuser. This must be so because, by definition, the bird cannot then be looked on as a wild bird. The burden of proof then shifts to the investigator who will have to show otherwise if the investigation is to proceed.

The difference between the old and the new provisions in this respect is subtle but important. Under the 1954 Act, if a person cannot show an investigator that a bird is in his possession otherwise than in contravention of the Act, a prima facie case exists and the investigating officer may take possession of the bird as evidence. With the new wording, all that a person need say is, "I bred them", or "A friend bred them". The investigator then has some difficulty in justifying removal of the bird, and delay in so doing might lead to the disposal of incriminating evidence. The wording of the old Act which places the burden of proof upon alleged offenders has been carried forward to the Bill. It is a very important provision but it is being diluted by the injudicious wording in the new subsection (5). I propose that the burden of proof be clearly stated by inserting the words in my amendment, which I beg to move.

The Earl of Avon

This amendment seeks to place the burden of proof on alleged offenders to show that a bird is captive bred. If this is claimed to be the position, it is unnecessary. Clause 1(2) in fact places the burden of proof in respect of possession or control on the alleged offender, and it would be mere duplication to repeat that requirement in Clause 1(5). It would not be sufficient for a person simply to say, "I bred them", or "A friend bred them". With that explanation, I hope that the noble Lord may feel able to withdraw his amendment.

Lord Beaumont of Whitley

I think the noble Earl the Minister has missed the subtlety of the point. It is, I admit, a very subtle point. Clause 1(2) governs wild birds, but if the person who is being accused under Clause 1(5) says: "This bird was bred in captivity", immediately it becomes not a wild bird and not subject to Clause 1(2). I admit that this is a highly complicated matter. I do not think there is any advantage in continuing to talk about it on the Floor of the Committee. However, may I ask the noble Earl the Minister to look tomorrow at Hansard to see what I have said and then to consider whether or not there is a valid point which needs to be looked at. If, without any further commitment, he would agree to do that, I should be happy to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.22 p.m.

Lord Renton moved Amendment No. 14: Page 2, line 21, leave out subsection (6).

The noble Lord said: I beg to move this amendment which is to leave out subsection (6) of Clause 1. The words in this subsection are superfluous, over-cautious and, I suggest, unnecessary; they are indeed merely a statement of the obvious. This subsection is not necessary for invoking Schedule 1 because that has already been done in subsections (3) and (4). The words are not necessary for the removal of any doubt, because there is no doubt to be removed. If, on the other hand, the Government are going to accept my suggestion with regard to special and general penalties for offences against birds, then subsections (3) and (4) would have to be redrafted, as I have suggested. Whether or not subsections (3) and (4) are redrafted, it seems to me that subsection (6) is in any event unnecessary. Therefore I suggest that it should be left out of the Bill.

The Duke of Atholl

As the most junior member of the Renton Committee on the Preparation of Legislation, I should very much like to support my noble friend. It seems to me that this subsection adds nothing to the Bill. One of our recommendations was that unnecessary verbiage should be cut out, wherever possible. This is a case which might well come into that category.

The Earl of Avon

It is my case that without the subsection it could be argued that birds in Schedule 1, Part I, were specially protected at all times and not just in the close season. It is equally possible to argue the other way, but I think it would be unsafe to rely upon this.

Clause 1(6) is a technical provision which makes it clear that a reference to birds in Schedule 1, Part II, does not include those birds outside the close season. The Government regard this as a necessary provision. Having so said, I shall of course read with interest in Hansard what my noble friend has said and discuss it again.

Lord Renton

Again I am obliged to my noble friend for offering to consider this matter further. I shall, in turn, read with care what he has said. However, he has not so far convinced me. Nevertheless, in view of his undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Kilbracken

There are two small points which I should like to raise on Clause 1. The first is that Clause 1(1) says, quite rightly, that anybody who destroys the nest of a wild bird while it is in use is guilty of an offence. The point I want to suggest to the Government in the hope that they may consider doing something about it at Report, is that the nest of a wild bird should also be protected while it is being built. While the nest is being built, presumably it is not yet in use. I think that a bird should be protected during its nest building activities. Secondly, in Clause 6(1) it is thought necessary to state that blown eggs are included in the word "eggs". However, there is no such statement about eggs in Clause 1(2). I suggest that there should be.

The Earl of Avon

Before the Report stage I will look at the noble Lord's comments on nests. I believe we have improved the clause this afternoon and that your Lordships recognise that even in this apparently straightforward, general prohibition we have struck a balance between a general intent and the detailed needs of those whose legitimate interests could bring them into conflict with the law. This balance is important. If, as we go though the Bill, we may seem sometimes to favour minority interests it is because we know that the best hope of this law being effective is for those active and interested minorities to join with the majority in helping with its enforcement.

We have made a shift in the onus of proof on to the holder of the egg or the bird. This is only proper. The general principle of bird protection is that eggs and birds should not be in possession, except in limited and explicit circumstances. It raises possible problems for museums. However, I hope that I have reassured the Committee that their fears are unfounded. I undertake to write to the noble Lord on his two points. Having said that, I suggest that the clause should stand part of the Bill.

Clause 1, as amended, agreed to.

Clause 2 [Exceptions to s.1]:

4.29 p.m.

Viscount Mountgarret moved Amendment No. 15: Page 2, line 33, after ("Part II") insert ("and Part III").

The noble Viscount said: I beg to move the amendment standing in my name. At the same time I should like to speak to Amendments Nos. 82, 84, 85, 101 and 365. It is rather complicated, but all these amendments hang together. Amendment No. 15 on its own would not make very much sense, because at the moment there is nothing to go into that part. These amendments deal with the matter of birds of prey. I feel fairly strongly that we should have some provision whereby certain birds of prey, under authority and under strict control, are allowed to be killed.

Before I evoke your Lordships' wrath, I should like to make it quite clear that nobody loves the eagle, the peregrine and the harrier more than I. But in this Bill we are dealing with conservation and preservation and, as with so many things of good intent, sometimes the pudding is slightly over-egged and one tends to throw out the baby with the bath water. I note what my noble friend Lord Margadale said on the Second Reading of this Bill—and I apologise to your Lordships' House that I could not be present on that occasion. He said: when one sees 17 hen harriers and no other birds, which is possible in the course of a morning on the West Coast of Scotland, one realises the danger for other birds …".—[Official Report, 16/12/80; col. 1044.] How true that is and it is particularly dangerous to the red grouse and the ptarmigan, which in the North of Scotland these days is verging on extinction—and I do not think that is an exaggeration.

Before the war there were many birds in the North of Scotland but these days there are not. They are being severely reduced for several reasons and it is not purely because of the birds of prey. There used to be a considerable quantity of rabbits and blue hares in Scotland, but since the war rabbits have virtually become extinct. Surprising as it may seem, rabbits have virtually become extinct in certain parts of the North of Scotland. They breed prolifically in the summer but later on, towards the winter, they are virtually all dead because of myxomatosis. Of the blue hare, one sees virtually none. The predators—the eagles, the peregrines and the harriers—have to live off something and it is to the grouse and the ptarmigan that they tend to turn.

In my part of Scotland I can prove these points. Before the war it was not uncommon to shoot upwards of 2,000 rabbits and 2,000 hares in the course of a season; it was not uncommon also to get substantial quantities of grouse. These days one hardly sees a hare or a rabbit on the hill and the number of grouse one usually gets in the course of the day is down to single figures. If it were possible to have a provision whereby, in certain areas, certain birds of prey (which we can talk about if this amendment is accepted) could be killed under licence to control and cull the numbers that exist, I feel this would be helpful to the conservation of other birds and not only to the birds of prey.

I should like to draw your Lordships' attention to what Richard Warrington wrote in his book The Management of Grouse. It is a very short story, in which he had taken a moor for three or four years and at one time his keeper reported to him that he had successfully killed a hen eagle on her nest. This was some years ago, I may say. Out of interest a watch was kept on the eyrie to see how the cock eagle would manage to bring up the eaglets. After about three weeks the eaglets had flown, so he and his keeper climbed up to the eyrie and, among other things, they found no fewer than 83 carcases of grouse. That is, one cock eagle had in the space of three weeks accounted for 83 grouse. I think that is quite a considerable number. If these birds of prey are allowed to proliferate without some control where they breed rather to excess—and there are places where this happens—I think it will be somewhat unfortunate.

At this stage I do not want to say anything about future amendments, because if we can get the principle established, whether or not there should be a Part III in Schedule 2 to include certain birds of prey to be killed under licence and under strict authority, the detail of the other amendments could be discussed later. If this amendment is not accepted then there will be no question of my attempting to move the subsequent amendments. I beg to move Amendment No. 15.

Lord Donaldson of Kingsbridge

Before speaking to this amendment, I think I should make a confession. It is that, like the noble Lord, Lord Chelwood, I am a biased character in that up to the end of this year I was the President of the RSPB, and the noble Lord is a distinguished predecessor. There is no financial attachment to this but it would be absurd to pretend that there is not a certain bias. One of the things that we in the RSPB are particularly keen about is the preservation, within reason, of the birds of prey which are becoming increasingly scarce.

My feeling about the rabbits is—how lucky! If I could get rid of the rabbits in my very small garden in Sussex, how pleased I should be! When I was farming they were a major nuisance and the only thing that kept them down was myxomatosis, but then they came back, so I can give very little deep sympathy to the noble Viscount over the rabbits. I do not think the fact that animals are disappearing in one area in an island like this is very important, provided that there are plenty of them elsewhere. This is perhaps rather a frivolous suggestion, but could he not move an amendment to put the red grouse and the ptarmigan in Schedule 1, which would at least stop them being shot?

Speaking more seriously, I think the noble Viscount has moved a most dangerous amendment, and I hope that the Government will resist it very firmly indeed. The basic fact is that at the moment the kind of action which the noble Viscount is talking about can, if the situation is serious enough, be taken without any further legislation. In fact, under the 1967 Act, there was in 1969 a case in Scotland where at lambing time a golden eagle was devastating a small flock of ewes which were very isolated. Application was made under the Act to the relevant authority and permission was given for the bird to be shot. That seems to me to be quite enough.

If we take the birds which are in the noble Viscount's Amendment No. 101, which is where the birds he is dealing with are actually mentioned; and if we consider that in the South-West of England there is only one pair of Montague's harrier, there are perhaps 500 to 700 hen harriers, there are 450 pairs, or thereabouts, of the peregrine, there are in Great Britain 230 to 300 pairs of the golden eagle; with the exception of the golden eagle none of these birds eats anything which is commercially viable, except the bred game birds. The idea that the bird of prey decreases its food is the wrong way round. What decreases the presence of birds of prey is the lack of food: the more food there is, the more birds of prey there are. I do not think that is really in dispute among the biologists.

I do not think the case holds at all. Under the wording of the Bill the word "livestock" means too much. It is possible to protect game birds which are being bred in restraint, just as fish can be protected against herons in ponds. The action of birds of prey on grouse being reared in the wild must and can only in general apply to the weaker ones, which produces a stronger brood at the end. I do not think I convince the noble Viscount at all, but I am very clear in my own mind. I ask the Government to resist this very strongly and to point out in greater detail what is the correct thing to do under the legislation as it exists, if a situation arises which gives rise to any kind of conservation problem. I cannot support this amendment.

The Earl of Avon

If I may follow on that point of the noble Lord, Lord Donaldson, I would submit that there is already a provision in the Bill to achieve the purpose behind the amendments tabled by my noble friend Lord Mountgarret. The licensing provisions contained in Clause 15 would enable a licence to be issued for the killing or taking of the birds in question. That provision will also cover consultation with the advisory body and the Nature Conservancy Council. The issue of such a licence, within the framework of the system applicable to all other species, would, we feel, be much better than a special procedure for these certain species. It would also ensure that the birds retain their special protection and that offences against them would attract the special higher penalty. With these words, I hope my noble friend will be able to withdraw his amendment.

Viscount Mountgarret

I thank my noble friend the Minister for his comments and, in view of what he has said, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

4.42 p.m.

Lord Kilbracken moved Amendment No. 16: Page 2, line 36, leave out ("a nest if that nest is in use by") and insert ("the nest of").

The noble Lord said: This is purely a drafting amendment. In Clause 2(2) there is a reference to "damaging or destruction of a nest if that nest is in use by such a bird". This seems to me a clumsy and repetitious phrase. It is not necessary in this context to mention its use by such a bird, I suggest it would be shorter and clearer to use the wording I propose. I beg to move.

Lord Donaldson of Kingsbiridge

May I ask for an explanation of this? Last year I had a robin's nest in a manure bag in my potting shed. So far as I can see, under this amendment I should not be allowed to destroy it.

The Earl of Avon

I think I am obliged to oppose this amendment because, with great respect to the noble Lord, Lord Kilbracken, I do not think it is necessary. Clause 2(2)(b), as drafted, legitimises the taking, damaging or destruction of a nest of pest species of bird when that nest is in use by a bird, an activity which would otherwise under Clause 1(1)(b) be an offence. It is not, however, an offence under the Bill to destroy any nest when not in use and there is, therefore, no need to provide for a defence in this clause. I hope that explains the position and that the noble Lord will feel able to accept that.

Lord Kilbracken

I do not view this as a matter of enormous principle. I should like to point out to my noble friend Lord Donaldson that, as I read it, he would have been perfectly free to destroy the nest of the robin once the robin had finished with it. The clause would then read with my amendment an authorised person shall not be guilty of an offence … by reason of the taking, damaging or destruction of a nest of such a bird". He would not be guilty of an offence; he could go ahead and take the robin's nest once it had been vacated. In view of what the noble Earl has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Somers

While I sympathise with the amendment, I wonder whether it does not perhaps go a little too far. Sometimes one comes across a nest which has obviously not been in use for several years. Would one be committing an offence if one destroyed that?

Lord Sandys

I am afraid the noble Lord is out of order because the amendment has been withdrawn.

4.46 p.m.

Lord Melchett moved Amendment No. 17: Page 2, line 39, leave out ("in Scotland").

The noble Lord said: I beg to move Amendment No. 17 and to speak at the same time to No. 18, which goes with it. I am really moving these amendments to raise a point with the Government which I hope will attract their sympathy, and I am not sure that the amendments as drafted necessarily achieve what I am aiming to achieve. It did seem to me, first of all, that if there were to be rules and Acts of Parliament about whether it was possible to shoot on certain days or not, it would be sensible for those to apply throughout Great Britain, and not for there to be different rules in different areas. It seems to me, on the subject of Sunday shooting, to be something of a nonsense that in some counties it is permitted and in others it is not. A degree of consistency in this, I should have thought, would be very welcome to all concerned.

I am not moving the amendments in any spirit of wishing to prevent people doing things on Sundays which they are able to do on other days, but with quite another point in mind. Many of the areas which are used at this time of the year for wildfowling are also intensively used by people who wish to watch birds. The North Norfolk coast, which is an area I know well, is an area where these two activities can go along in harmony very well indeed, and that is mainly because Norfolk is a civilised county which does not permit shooting on Sundays. Bird-watchers know that they can go to the coast on a Sunday and watch birds without interfering with other people's sport and without the danger of being shot near or shot at. That seems to me to be a great advantage. I know that there are other areas of the country where people are not quite so advanced as we are in Norfolk and where the practice of division of the weekend is not possible, and this inevitably gives rise to at least some degree of conflict and maybe some confusion.

It seems to me it would be very useful to make the provision, first of all, consistent throughout Great Britain, and, secondly, as it were, to so divide the weekend up that there is a day on which people can go to shoot and a day on which those who do not wish to shoot but wish to watch birds can go to the coast, or other areas, and be sure that they are not interfering with anybody's sport, and also not have the birds they wish to watch shot at while they are there. I hope with that explanation the amendments will commend themselves to the Committee and to the Government. I beg to move.

Lord Mowbray and Stourton

With great respect to the noble Lord, Lord Melchett, I should like to say that he plays fast and loose with our affections. He earlier gave a long list of countries in which he claimed various things happened. Let me put that back to him now on this matter. On Sundays in most of Europe shooting is a perfectly normal happening as on any other day of the week. He is not now mentioning Europe; he does not mention one other country in Europe; he is keeping very quiet about that on this amendment. He is trying to take us a step back. I think it is a mistake. In Scotland we have certain customs which have been with us for a while, although they are rapidly going, I might say. I think this is an unnecessary infringement on the ordinary practical everyday life of people in the country.

Lord Melchett

If I may say so, it is a little unfair of the noble Lord to throw what happens in Europe at me. I am being consistent. The Committee decided on a previous amendment that it did not wish to follow the rest of Europe. I am simply taking a lead from the Committee. The noble Lord was the one who insisted that we should not do what the rest of Europe does, and, despite the fact that there is at least one other country in Europe where Sunday shooting is not permitted, I thought that I, and not the noble Lord, was the one who was in tune with the general feeling of the Committee as regards this amendment.

Lord Mowbray and Stourton

I thought that my noble friend on the Front Bench answered the point by indicating that most of Europe did not have foreshores. I do not think that the noble Lord's arguments held much water on that account.

Viscount Massereene and Ferrard

The noble Lord, Lord Melchett, must admit that his chickens have come home to roost. I fully support what my noble friend said. The noble Lord cannot at one moment say that we must follow Europe and the next moment say that we must not follow Europe. I agree that the noble Lord did not use those exact words, but that was the implication of his speech.

I personally never shoot on a Sunday, because I have been brought up not to do so. It is a fact that in Scotland it is not done. I do not shoot a great deal now, but when I was younger I used to shoot quite a lot; but, of course, I had far more opportunity to shoot than many other people, especially working men. Of course we all work, but I am now talking of those whom we normally refer to as working men. So, I think that this is rather unfair. I see no reason why shooting should not be allowed in England and Wales on a Sunday. To be completely logical, it should also be allowed in Scotland, but Scotland has these old traditions and is rather puritanical. So I cannot support the amendment. I think, as the noble Lord said, that we must follow Europe. Surely we ought to follow Europe here.

The noble Lord mentioned areas where there are many members of the public who like bird watching. I know that the county councils used to have such a power, but does not the Secretary of State have the power to designate certain areas where one cannot shoot on a Sunday? Perhaps I am wrong in that respect. I cannot support the amendment.

Lord Melchett

I should like to make the point to the noble Viscount that there are a half a million bird watchers in the United Kingdom—men, women and children. I daresay that some of them are working men but, under this Government, most of them may be not working. I was trying to achieve an equality between the rights and interests of those half a million people and the rights and interests of those who shoot.

Earl Peel

If I correctly interpret the noble Lord's suggestion, would it not mean that if a Schedule 2 Part II bird—what we loosely call "vermin"—for example a carrion crow, was seen to be taking the eggs of free-range chickens on a Sunday, the farmer would simply doff his hat and say, "It's Sunday, I will let you go"? Surely that is carrying the matter a bit too far and that he should be at least allowed to protect his agricultural pursuits or his livestock.

Lord Gisborough

Shooting is increasingly being done by working people who come out on Saturdays and Sundays. Very often they take a little bit of land and Sunday is the day when they are able to look after that land and try to do a bit of game killing. It would be a quite retrograde step if this amendment were allowed to succeed.

The Earl of Avon

I have very little to add to the arguments which have gone backwards and forwards. I was interested to find that we could get a little political argument into the birds! I do not think that there is very much to say for the amendment except inasmuch as it makes all the customs equal. We have equally heard that Scotland might be changed to accommodate England and Wales instead. There are, as the noble Lord, Lord Melchett, said, various areas in England and Wales—mostly in Wales—and a few in the North country, where Sunday shooting is prohibited. This flexibility is reflected in the present Protection of Birds Acts, by the Secretary of State's ability to make orders in respect of pest and quarry species. Under the provisions of Clause 2(3) it will still be possible to make representations to the Secretary of State that Sunday shooting of quarry species should be stopped.

However, the effect of the noble Lord's amendments being accepted would be that England and Wales would be on the same footing as Scotland, where even a pest species cannot be shot on a Sunday or on Christmas Day. I do not know whether the noble Lord would like to withdraw his amendment or to continue pressing it.

Lord Melchett

I am grateful for the somewhat equivocal—I am not sure whether "support" is the right word—attitude adopted by the Government. I must say, given how much we have heard from the noble Lord, Lord Mackie of Benshie, that it is a shame that he is not here to press Scotland's case. I am a little suprised that those who have been pressing for us to follow Scotland in other respects have not followed me on these amendments. I do not think that this is something that I would wish to divide the Committee on at this stage, but I should like to consider what has been said in the debate and come back to the matter at the Report stage. It seems to me that there really is a rather good case to be made out for what I am proposing and that it would be well worth including this sort of degree of consistency in the Bill. But, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

4.57 p.m.

Lord Donaldson of Kingsbridge moved amendment No. 19: Page 3, line 2, leave out ("(except in Scotland)").

The noble Lord said: I beg to move Amendment No. 19, and before moving the next two amendments I should like, with the permission of the Committee, to make one or two general remarks because they are all concerned with different aspects of the same issue. I must try to make it clear that neither I nor the RSPB as a whole are against legitimate wildfowling. We recognise, as do most responsible conservation bodies, that wildfowling is an acceptable culling or cropping of a wildlife resource and it will always go on, and the fact that a lot of people take a great deal of pleasure in it is a very good thing and not a bad thing. So, I hope that I shall not be thought to be somebody who is against the whole thing, because I am not: I believe that it is an integral part of living with nature. But what I do want to do is to rationalise the shooting seasons so that they are easier to understand and follow, and so that they are based on sound biological principles.

Since the 1954 Act, we have learned a great deal that was not known then about where birds come from and where they go to. Since that date much more is known about wildfowl and waders and their populations in wintering areas and thinking here and abroad is now based on proper knowledge rather than guesswork. Nevertheless, shooting organisations have often been rather slow to accept the view of biologists and even the view of their brother hunters on the Continent. A case comes to mind in 1974 at a conference in Teheran—I will not give the long title—where a resolution was passed urging states to control strictly the commercial exploitation of wildfowl and waders. Only two parties abstained: one from Holland, so that he could consult his delegation; and the other delegation was from this country.

The following group of amendments is directed to this end—to rationalising the close season dates. The first amendment deals with the words, "except in Scotland". That really is trying to get the shooting season for woodcock in England and Wales into line with the season in Scotland. The proposal would reduce the Scottish season by a month. The opening would be moved, in order to suit the English arrangements, from 1st September, as it is now, to 1st October. The arguments are not very lengthy. The status of the woodcock is under review at the moment and there is a widely-held belief that woodcock numbers would be far higher if they were not so heavily shot. For example it is believed that 800,000 woodcock are killed in France and 600,000 in European Russia each year. Our contribution to this toll is modest; the annual bag is tens of thousands.

However, the problem is an international one. The bulk of woodcock are long-distance migrants to Western Europe out of the North and East, and they are very sensitive to the onset of severe weather. A bird which over-winters in Britain one year may be driven to Ireland or to Southern France in the following colder winter. To reach us it may have travelled from Finland through three or four other countries, and will eventually return to Finland in the spring. So the relationship of our national laws to those of other nations is important. In responsible conservationist circles—and they are, generally speaking, joined with the shooting lobby in this particular matter—there is a strong body of opinion which favours rationalisation of shooting practices in Europe as a whole, for sound practical and ecological reasons. The benefits, both to the man shooting and the bird shot, of a fully integrated pan-Continental system are apparent from examining the situation in the United States of America, Canada and Mexico. These amendments go in this direction, and I beg to move the first one, No. 19, which concerns woodcock.

The Duke of Atholl

I agree with almost every word that the noble Lord, Lord Donaldson, has said. None the less, I come to a different conclusion. It is that the woodcock is already mature by 1st September, and it is not that one is shooting immature woodcock as such during September. Very few are shot in Scotland during September. I do not think that anyone has established the figure, but certainly no one of my acquaintance goes woodcock shooting as such in September, and I think that he would be remarkably ill-rewarded if he did.

Nearly all the woodcock in Scotland in September are home-bred, and that is one reason why there are very few; as the noble Lord, quite correctly, said, most of the woodcock in this country come from Scandinavia and Finland and are not home-bred. But there are a few that are home-bred, and these are occasionally—but I suspect very occasionally—shot in September.

I should have thought that to change this particular season would have a small effect on the total number of woodcock shot, and would have no conservation effect at all because the numbers would be so small; it would just cause fuss and muddle in the minds of people in Scotland who, if by chance they come across a woodcock in September, may shoot it, feeling that they are legally allowed to do so.

Lord Kilbracken

I should like very strongly to support my noble friend Lord Donaldson on this matter. The noble Duke has just pointed out that any woodcock shot in the month of September are almost certain to be home-bred birds. I would say that all of them are, because to my knowledge most woodcock arrive in the month of November, with possibly a few arriving in October, but practically all those around in September are birds from the increasing number that nest in the British Isles.

It seems to me most undesirable that any shooting should be permitted in the month of September. The noble Duke has already said that very little shooting takes place in that month, so as a result there would be very little deprivation; because the birds that are then shot would be some of the few that breed in this country and they should, therefore, be particularly encouraged on the same principle as rare birds that breed in this country are encouraged—that is, they are protected by Schedule 1. I, therefore, hope that my noble friend's learned exposition of the habits of woodcock will persuade the Government to accept this amendment.

Viscount Massereene and Ferrard

I should like to support the amendment, notwithstanding the fact that what my noble friend the Duke of Atholl has said is perfectly correct. But nobody shoots woodcock in September. If a person is out on the moors he might—I would not—shoot a woodcock. If this amendment is accepted, I do not think that it would cause any great difference to woodcock. Nevertheless, in the cause of rationalisation I support it.

Lord Donaldson of Kingsbridge

Support from the noble Viscount is as agreeable as it is unusual. I must say to the noble Duke that his arguments were—as he told us they would be—entirely on my side, and I was not quite able to understand why he came down on the other side. One cannot always see into people's minds, which is what makes these debates so interesting. But it seems to be clear that the less woodcock are shot in September in Scotland—in other words, the less tiresome the change is for the man who shoots—the better it is to make this as one step among several others that I shall move towards unification. Therefore, I hope that the noble Earl and the Government will accept this amendment.

Lord Margadale

I should like to say a few words before the end of this short debate. I should like to support the noble Duke, the Duke of Atholl, in all that he has said. I agree that some woodcock are home-bred birds. Equally, very few birds will be shot in August—they will only be shot in bracken (people do not go through woods at that time of year).

During the passage of the original Bird Protection Act I moved an amendment which brought about the state of affairs which is contained in the Bill, and that amendment was carried without a Division. It gave a boy home from school a chance to shoot an occasional woodcock and an occasional snipe. That is quite a point. A boy learns to shoot much quicker than older people and in consequence is much safer than some older people.

The Earl of Avon

Perhaps it is time that I declared a slight interest: I am very fond of eating woodcock and it is one of my specialities to cook them. However, I never buy a woodcock in September. They do not seem to be obtainable in London.

There seem to be two arguments being advanced at the moment. One is purely the rationalisation argument—that for rationalising the dates of the seasons in Europe. Our argument here, as a Government, is that this fails to take into account the climatic differences throughout Europe and that rationalisation should really start at home. Further, it might be argued that perhaps we ought to persuade the French and the Italians to curb their excesses in woodcock slaughter, because I think that they kill them in incredible numbers. However, that is a matter which has not been considered by the advisory committee. If I undertook to ask the committee for its advice, I wonder whether the noble Lord, Lord Donaldson, might like to leave the matter for the moment. As has been said in this Committee, to shoot woodcock is a very rare occurrence in this particular month and we are advised that there is really no conservation need.

Lord Donaldson of Kingsbridge

I am happy with what the noble Earl has said. I think that it would be much easier for us to intervene as regards the French and the Italians if we had taken a first, small step; so I very much hope that the noble Earl will come back to us with agreement to this amendment, which I am happy to withdraw.

Amendment, by leave, withdrawn.

5.9 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 20: Page 3, line 5, leave out paragraph (b).

The noble Lord said: This is the same subject, in this case dealing with snipe. Paragraph (b) re-enacts the snipe shooting season, which is currently in force under the 1954 Act. It creates an open season for the common snipe and jack snipe 20 days longer than the standard open season for all other species of wader, beginning on 12th August.

There is little evidence that snipe shooting is an important, or even a desirable, primary recreation in the month of August. Indeed, the jack snipe—a species little bigger than a house sparrow—is not present in Britain at that time at all, being a winter visitor from overseas. It seems to me that the provision in question is an historical anomaly. It is a carry-over from the days when some of your Lordships' grandfathers and their friends enjoyed a bit of target practice on the few snipe—or perhaps I may add anything else that flew—which were put up by beaters on the grouse moors.

You will note that the opening day for snipe shooting coincides with the Glorious Twelfth. One might ask how important the opportunity to shoot snipe in August is to the quality of sport on grouse moors. I am clear in my own mind that the answer is very little indeed. Grouse moors aside, the other areas where snipe shooting may occur would be mainly on lowland wet pastures, marshes, or margins of open waters. At such locations one would also find other bird species all enjoying the last disturbance-free weeks before the start of the wildfowling season proper.

Some birds such as wildfowl may still have young in care which are even more vulnerable to disturbance. These birds would also include individuals of species which are normally legitimate quarry after 1st September. The temptation to bag a few surreptitiously might prove too much for some, although not I think for noble Lords' grandparents. I would not wish to recommend snipe as early season target practice for people shooting grouse, or to place temptation in the way of people roaming the marshes with a gun. I beg to move that this paragraph be taken out, which would bring the close season in line with the others.

Lord Gibson-Watt

Before the Government accept this amendment, I should like to put a slightly different point of view. I think that the noble Lord, Lord Donaldson, is in a way quite rightly using the argument in all these amendments under this clause that, if we make certain changes and rationalise, it would help the RSPB and other conservationists in their arguments with Europeans. This may well be so, but from one's present knowledge of the attitude of the Europeans I rather doubt whether it will have a great deal of effect. Perhaps I am a pessimist in this. That is my first point.

Secondly, leaving on one side the question of target practice, which was picturesque but is not the present situation, the present situation with snipe shooting in August is not just on grouse moors but it is on ordinary grass hills and rushy hills. You get the snipe breeding in this country in the hills, and if you shoot them before 20th August before they go away, you will get a few. You will not get a great number, but you will get some. If you go after 20th August, they will not be there.

If the noble Lord's amendment is accepted, you will be stopping certain people, certain sportsmen, in the hills from shooting a few snipe, which will then go down to the lower areas and will be shot there. I think that it would be better to leave this as it is. There is not a great number of snipe shot, as indeed we heard on the previous amendment. It is a marginal argument, but on the whole I would leave it.

Lord Kilbracken

Once again I should like to support my noble friend in this amendment. He seemed to think that it was only your Lordships' grandfathers who shot snipe on the 12th August, but I remember in the days before I gave up shooting that I have often shot snipe on that day when I was actually trying to catch up with some grouse. It seems to me most desirable that snipe should be protected beyond the middle of August from every point of view, but particularly in light of the provision in subsection (6) on the same page under which the Secretary of State can extend the period of the close season but by not more than 14 days.

My feeling is that that provision is unnecessarily restrictive because that would enable him to extend the close season for snipe only until 25th August, for instance, and in other cases he might well want to extend the order by three weeks or a month. I should like to suggest to the noble Earl that that passage in parenthesis in lines 21 and 22 should be deleted at a later stage, so that the Secretary of State could extend the close period for more than that time if he so desires. In any case, I agree that both paragraphs (b) and (c) should be deleted, and I hope that the noble Earl will see his way to agree.

5.14 p.m.

The Duke of Atholl

On this occasion I think that the noble Lord, Lord Donaldson, has a point. While I do not entirely go along with it, I think that the number of snipe has diminished substantially in the last few years. I should have thought there was a good argument for shortening the whole snipe season at both ends, but, unlike him, I should have thought particularly at the December and January end when snipe must be getting much weaker and therefore easier targets. Whatever he says, they are extremely difficult targets, even in August. I am sure he knows that only too well.

Perhaps I should declare an interest as I greatly enjoy eating a snipe. I think it is probably one of the most delicious forms of game bird cold—if game bird is the right description, which I do not believe it is. Therefore, I would admit that, if I see one within range, I tend to shoot it. But I think there are good arguments now for shortening the season. In support of this, I should like to tell a little story.

A few years ago I let one of my grouse moors with a limit to the number of grouse, and for any grouse shot over the limit the tenant had to pay an extra sum per brace. He got near the limit before he got through his time as tenant. He instructed his guns thereafter to shoot only snipe or ptarmigan as they did not count against the limit. This is another reason why I would be keen on supporting the noble Lord so far as this amendment goes. But I should also have liked him to put one down to stop snipe shooting in January, because it seems to me that the numbers of snipe have gone down considerably in the past few years. I think this was due to the hard winters that we had the winter before last and the winter before that, and even more so the winter of 1963. I feel they possibly need some form of protection, but I would not be expert enough to know if they were given a protection from shooting whether this would be likely to have any effect on their numbers. I suspect that a great deal of research is needed into this, but I would have thought it must certainly help them.

The Earl of Swinton

I should like strongly to disagree with the noble Duke. Here I must declare an interest because my wife is very partial to snipe—when she is not debating disablement problems in your Lordships' House. I am always greeted in great triumph when I come back from the moors, as I do occasionally, with a snipe. Probably only one snipe during the course of a day because that is all we get. I would echo the point that my noble friend Lord Gibson-Watt made; we can only shoot them in August because they go. They breed with us, and it is an enormous pleasure to me. I love going up to the moors and watching them doing that wonderful flight that they have when they are nesting. I also rather enjoy shooting them. They are a most challenging and difficult target, I can assure the noble Lord, Lord Donaldson. There is nothing easy about shooting a snipe. We can only shoot them in August, because after that they have gone. If there is going to be some sort of curtailing of the snipe season, I would much rather see it in the end when they are suffering anyway in the harder weather.

Lord Margadale

I disagree with both my noble friends, in that I do not like eating a snipe, but I should like to support the noble Duke, the Duke of Atholl, in that if you are going to curtail the snipe shooting season a hit, do it at the end of the season rather than at the beginning.

Lord Gibson-Watt

May I speak again and say to those noble Lords who happen to shoot in Scotland that there is such a thing as a snipe migration. If you stop shooting at the end of the season, nothing will get down to Wales at all.

The Earl of Avon

We seem to be running into a considerable problem on the subject of the snipe season. I think probably the best solution would be to refer this matter to the advisory committee to seek their advice, and I would undertake to do that.

Lord Donaldson of Kingsbridge

I am entirely happy with that suggestion, and I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

5.20 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 21: Page 3, line 7, leave out paragraph (c).

The noble Lord said: The purpose of this amendment is, in general, having dealt with one or two anomalies, to rationalise the shooting season in Britain so that it ends everywhere for all species on 31st January, and this to some extent would be my objection to shortening the snipe season from that end, but obviously it is not a final one. In December 1979, at a technical meeting of the IWRB (Institute of Waterfowl Research Bureau) on Western palaearctic migratory bird management, more than 60 experts representing 20 states and organisations, governmental and non-governmental, suggested that governments give waterfowl populations the necessary protection after mid-winter when determining open seasons. The biological evidence presented showed that shooting after mid-winter may increase total mortality and reduce the breeding capacity of waterfowl populations.

It has been stated that the coastal shooting season, to 20th February, is the cream of the wildfowling in Britain; by that I understand that more birds are able to be shot than at other times. Mallard, the principal quarry, are almost all fully paired by this time, having started courtship well before Christmas. Less than two weeks after the end of the coastal shooting season, mallard will or should have, or will begin or should have, begun breeding. Wildfowling in February may destroy those bonds between the pairing couples which are of two or three months' standing. If a mallard is destroyed, its partner has only a few weeks in which to find another pair and synchronise its breeding season with another mate.

There is a great deal of evidence to show that waterfowl are already paired before they leave their British wintering grounds for their more northerly overseas breeding grounds. The advantage of arriving already paired is to take maximum advantage of the short summers at the northerly breeding grounds. Birds arriving without mates begin breeding too late for their progeny to survive. It is important to realise that waterfowl shot in February are some of the fittest birds. They have survived early winter hunting, cold temperatures and perhaps food shortages. Destroy them and you destroy some of the best breeding stock and their breeding capacity, which means there will be less birds to shoot during the next autumn and early winter. The February shooting season does not, as is sometimes claimed, avoid threats to early breeding duck, but actually increases them.

It is not only the quarry species that are at risk from February shooting; other widlfowl and waders are heavily disturbed at this time—the cream of the wild-fowling season. Not all of our major estuaries have refuges. Some estuary refuges are certainly too small to cater adequately for waterfowl. Mid and late winter are the crucial times of year when water fowl have to amass fat deposits and increase their bodyweight in order to accomplish their long migrations. This is severely hampered by continued disturbance from hunters.

It is clear that there is a scientific background of some importance for what I am asking, and certainly it would be clearer to shooting men, the police, administrators and everybody else if there were uniformity and no extensions for foreshore shooting, which there are now. The split season is countenanced by few of our neighbours in Europe, and we think it is a mistake and confusing to everybody. Your Lordships' House seems rather uninterested in what Europe does, so I shall not quote the information I have about that because it probably would not carry much weight. The main reasons for shortening the wildfowling season to 31st January are not merely administrative, though they have a useful administrative side to them. I believe they are necessary for the well-being of the breeding populations in the following spring, which in turn will lead to more birds and more opportunities for shooting in the following autumn and early winter. To limit shooting until 31st January is the wisest course of action for managing our natural waterfowl resources. I beg to move.

Lord Beaumont of Whitley

My name appears to have crept on to this amendment by mistake, probably mine, which does not mean I am against it, and I am listening with interest to the arguments.

Lord Kilbracken

I agree with my noble friend Lord Donaldson, who has done his homework so thoroughly that there is little one need add about duck, except perhaps to mention one important consideration. It is that, as he mentioned, some birds, in particular the mallard, start pairing off and indeed nesting very early in the year, even in January; I think my noble friend mentioned Christmas, but certainly this happens in January. If anything, therefore, I would suggest that duck should be protected from earlier in the year than 1st February, preferably from 1st January.

The Earl of Onslow

Are we absolutely certain that mallard are threatened? If one looks at the artificial lakes and even the natural lakes one sees, certainly all over the South of England, what I should have thought was an increase in the number of mallard. I should have the greatest pleasure in supporting the amendment if I thought it was necessary. One hesitates to change people's long-standing practices, habits and enjoyment unless it is absolutely necessary to do so, and if one had seen evidence or knew of a real threat, even a slight one, posed by the foreshortening of the water-fowling season on the foreshore, then of course one would vote for it. But I have not been so convinced from my observations that there is a threat to mallard and, if there is such a threat, I should like to hear the Government's view on it.

The Earl of Swinton

I agree with my noble friend; the impression I have is that there is not an enormous difference in argument between the wildfowl associations and the conservation societies over this.

Lord Donaldson of Kingsbridge

I agree.

The Earl of Swinton

I feel I should go into the history of this a little because the season has been curtailed over the years. Under the Wildfowl Protection Act 1876 the close season was from 15th February to 10th July. It was altered in 1880 from 2nd March to 31st July, but giving county councils the power to alter dates in their areas. In 1939 the Wild Bird (Ducks and Geese) Protection Act was introduced and the close season was made from 1st February to 11th August, but it gave maritime counties power to extend the season to 21st February. The important date is 1954 and the Wildfowl Protection Act, in which the inland close season was from 1st September to 31st January, with the foreshore shooting continuing to 20th February for ducks and geese only, and I stress ducks and geese only.

The noble Lord, Lord Donaldson, said wading birds were greatly disturbed by the shooting. Certainly they should not be shot at and disturbed in that way. I understood that this had been a successful compromise. In the case of very bad weather, which occurs from time to time, I understand there is ample consultation between wildfowling and conservation bodies and that a stop is put on it, so that if the birds are getting too run-down it can be stopped. I was surprised to hear what the noble Lord said about the effect this was having on mallard, because that has not been my impression. Therefore I should not like the Government to give way without first conducting considerable research into the matter.

Lord Donaldson of Kingsbridge

I agree about the weather; there is good consultation on that. I did not suggest there was a shortage or a running down of mallard. I suggested it was a widlfowl resource which could be better looked after without damaging the pleasure which people take from shooting. The suggestion is that three weeks less on the foreshore is not very serious, but those three weeks on the foreshore do a certain amount of injury by way of disturbance to other birds which we are all agreed should not be shot during that time.

The Earl of Avon

Before going into this matter in some detail, may I refer to the question of the snipe and suggest to the noble Lord, Lord Donaldson, that we can of course always shorten the other end of the season under Clause 2(6) by a similar form of protection.

The Government have taken advice on this matter, and we have been to the Nature Conservancy Council about it. We have not actually been advised to make any change in the open or close seasons of these animals. I understand that the scientific evidence is not clear as to whether shooting helps these species by reducing numbers competing for limited food so that survivors get enough and return to breeding condition quickly, or whether it hinders them by reducing the net breeding population. Noble Lords have mentioned the powers in Clause 2(6) to ban shooting in periods of hard weather—a power which was used two winters ago. We do not accept that there is a need to change present British practice.

Noble Lords have mentioned the question of populations. So far as we can discover, the populations are increasing, except for widgeon and teal, which are decreasing, but we think that that might be due to a shift of the wintering population. Although a welcome decrease in disturbance to non-quarry species would result by terminating the shooting season earlier, population trends of waders are not showing declines, nor are the population trends of most ducks and geese. There is therefore no indication that the threshold has yet been reached at which hunting mortality becomes additive to natural mortality to such an extent that population decline would result. Therefore I accept, of course, the noble Lord's reasoning on rationalisation, but outside that I cannot really accept the need for this particular amendment, and I hope that the noble Lord will not press me on it.

Lord Donaldson of Kingsbridge

My Lords, I shall not press the noble Earl, but I should be very grateful if he will raise this matter with the other matters, because I think that the three amendments as a whole would improve things very much if the alteration can be made throughout. However, in view of what he has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.33 p.m.

Lord Craigton moved Amendment No. 22: Page 3, line 29, leave out ("one").

The noble Lord said: With the permission of your Lordships' Committee I should like to take with this amendment Amendments Nos. 310, 311, 317, 318, 361 and 362. The subsection as worded says that, Before making an order … the Secretary of State shall consult … whichever one of the advisory bodies he considers is best able to advise him …". What I want to insert in the Bill is a provision that the Secretary of State shall consult whichever of the advisory bodies he considers able to advise him. The subsection seems to prevent the Secretary of State from taking advice of more than one such body, whereas under Clause 21 he may establish advisory bodies, in the plural. I do not believe that the point I have raised is the intention; I think that this is a purely drafting matter. I beg to move.

Lord Donaldson of Kingsbridge

I beg to support the amendments.

The Earl of Avon

While there may be instances when more than one advisory body would be able to give good advice on the making of an order, or more especially on the granting of a licence, I anticipate that on many occasions the Secretary of State will have insufficient time to consult more than one body. In fact, the amendments do not appear to achieve the intended result, since the remaining words whichever … of the advisory bodies he considers … able to advise him would still require the Secretary of State to select from among the advisory bodies. However, I assure the Committee that, where there is time to do so, the Secretary of State will always seek to consult widely, and not confine himself to one of the advisory bodies. I can assure my noble friend that I have looked into this matter quite carefully, and I am assured that there is no real need for the amendment.

Lord Craigton

Before begging leave to withdraw the amendment, may I say that I can visualise a noble Lord standing up in your Lordships' Chamber and asking the Secretary of State of the time, "Did you consult more than one body?" And then adding, "But you are not supposed to consult more than one body". However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

Lord Donaldson of Kingsbridge moved Amendment No. 24: Page 3, line 33, leave out ("a person") and insert ("persons").

The noble Lord said: This amendment is very much on the same lines as other amendments, and I should like to speak to Amendments Nos. 24 and 26 at the same time. In the Bill it is laid down that the Secretary of State must choose his advisory body, hold discussions with the Nature Conservancy Council, and find a person who appears to him to be a representative of persons interested in the shooting on birds of the species proposed …". We are rather surprised that if one is to find people outside the official bodies, one should ask only for someone who is interested in the shooting of birds without asking also for someone who is interested in the protection of birds. The answer to that will be that we are already asking an advisory body, but it is not stated which advisory body, or who is on it. It might be the Wildfowling Association. It might also be said that the Nature Conservancy Council is to be consulted. They are admirable people, and we usually agree with them, but they are not a body who are dedicated to the protection of species in a way in which certain individuals and movements are so dedicated.

So we are asking that two things should happen. First, instead of the provision reading "a person appearing" it should read "persons appearing", since the phrase "a person appearing" seems to limit it to one person and I am suggesting that there should be at least two persons. Secondly, we propose that after the words "in the shooting" there should be added and in the protection of birds of the species …". This is a very simple proposition. I am sure that the noble Earl will say that the position is perfectly well covered, but we arc not happy about it. We do not think that it is perfectly well covered, and anything that the noble Earl says will be on record and might help the situation. I beg to move.

The Earl of Avon

The noble Lord, Lord Donaldson of Kingsbridge, has pinched some of my ammunition. He is correct. As we understand the position, Clause 2(7) paragraphs (a) and (b) place an obligation on the Secretary of State to consult an advisory body and the NCC. Paragraph (a) will be the protectionist side of the safeguard. Paragraph (c) requires consultation with a representative, and there we were thinking of wildfowlers. In the Government's view that would be the right way to do it.

The NCC has agreed consultation procedures and criteria with conservationists and wildfowling bodies in the event of severe weather, and those are in operation. We are satisfied that protectionist opinion will in fact be sought under the provision as now drafted, which has been taken from the Protection of Birds Act 1967. I do not know whether I have satisfied the noble Lord, Lord Donaldson, on that point.

Lord Melchett

I am not sure that any of us are satisfied on this matter. Like my noble friend, I can see what was the intention in drafting the clause, but I hope that the Government will agree to have another think about this question. For one thing, the advisory body will be made up of representatives of many different organisations and, as we shall see when we discuss this point, we shall have no guarantees as to who will and who will not be on the advisory body, nor indeed will there be a guarantee that any particular organisations will be represented. Even if they are represented, they might be represented by only one person among a great many people on the advisory body, which might then come to a view with which that person and the voluntary movement as a whole disagree.

It seems to me that it would be useful for the voluntary organisations to have a chance to have their say, particularly given the enormously valuable role that they have played in the past, representing persons interested in shooting. There has been a great deal of co-operation and working together on this matter in a number of fora, and I would hope that the Government will have another think about it and perhaps come back to us at the next stage.

Lord Gibson-Watt

May I make a quick point before the Minister replies again? On the last occasion on which this happened, which was two years ago, the then Minister, Mr. Shore, quite rightly took the decision. The decision has to be taken very quickly indeed—within a matter of one or two days—and in my view the more people we have that the Minister has to discuss with the more impossible it is. I would have thought that the voluntary societies, the RSPB, could rely upon the Nature Conservancy as well as the shooting voluntary societies can rely upon WAGBI to represent them. The Minister may have to make two quick telephone calls before coming to his decision, but you do not want a great committee meeting.

Lord Melchett

But I think—and I am subject to correction about this—on the very occasion the noble Lord mentions it was in fact the RSPB which pressed for the Minister to take this decision, and I think I am right in saying that at least some of the other people consulted, if not the NCC, the advisory body—but the noble Earl speaking for the Government may correct me on this—were not in favour. My recollection is that it was the RSPB which successfully pressed the Minister to take that action, and that a number of other groups or organisations which were consulted were not in favour of it. It seems to me that that occasion strengthens the argument from this side rather than weakens it.

Lord Donaldson of Kingsbridge

Before the noble Earl replies to my noble friend, it seems to me that the first amendment, at least, would give flexibility. As it stands now, the Secretary of State has got to consult a person (I would not have thought that he necessarily had to, but as things are he has got to consult a person) but he may not consult more than one. That is what I read in this. It seems to me that at least we could have "persons", so that if he wanted the views of some well-known naturalist in the area he would be able to obtain them. I believe this should be looked at again, if the noble Earl can be convinced.

The Earl of Avon

I will of course look at it again, but I look at it with not a tremendous amount of optimism, for two reasons, really. The intention and effect of the two amendments which have been tabled is to require the Secretary of State to consult a protectionist when considering the making of an order to prohibit the shooting of birds in open season. We have just heard from the noble Lord, Lord Melchett, and from behind me, that in point of fact the Protection of Birds Act 1967 has been working very well on this, and as the provision as now drafted has been taken from that Act I feel that it should be good enough; but I will certainly have a look at it.

Lord Donaldson of Kingsbridge

With that assurance, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

5.43 p.m.

Lord Kilbracken moved Amendment No. 25: Page 3, line 33, after ("person") insert ("(if any should come forward)").

The noble Lord said: As my noble friend Lord Donaldson has pointed out under Clause 2(7)(c) the Secretary of State must consult—it says "shall consult" —a person appearing to him to be a representative of persons interested in the shooting of birds, et cetera. My amendment would add the words, "if any should come forward" after the words "a person". It may be that this amendment is unnecessary, but, if so, I should be grateful if the noble Earl could tell me why. What happens if nobody representative of the shooters comes forward to be consulted by the Secretary of State? If the Secretary of State does not consult such a person, he cannot make any order under subsection (6). Therefore, to prevent such an order being made it seems to me that those who are interested in shooting could refuse to put forward any representative. If this is so, words such as those I am proposing ought to be inserted, and I therefore beg to move.

Lord Mowbray and Stourton

I should like to ask the noble Lord, Lord Kilbracken, why he is putting the onus on the individuals or bodies, who will not necessarily know what is in the Secretary of State's mind. He is not obliged to advertise in the press that he is considering whether he might do this or might do the other. How are these bodies or persons, or whoever, to come forward and volunteer advice on something about which they know nothing? Surely it is better to leave it as it is, where the Secretary of State has to consider and discuss with at least one person or body. I really do not understand the noble Lord's thinking as to how people should be mind-reading what the Secretary of State might be doing.

Lord Kilbracken

I do not foresee that such a representative need necessarily volunteer to come forward. What I mean is that if the Secretary of State considers that a certain person should be consulted, he can ask him to come forward. But, then, what happens if he refuses to come forward because he does not want the order to be made? If no one comes forward the order cannot be made, because the Secretary of State must consult such a person. Therefore, as I understand it, if a person is asked and refuses to come forward, the Secretary of State cannot make the order.

The Earl of Onslow

Would it not be better to just leave it in the words of the Protection of Birds Act, which, as we said on the last amendment, seem to be working perfectly all right? Surely, anyway, the Secretary of State can find another person who is interested in shooting. If one person sits on his bottom and will not move out of his office, there must be somebody else he can find to talk to. I must say that the thought of all the WAGBI officials going on strike and refusing to speak to any Minister is a thought which is really quite amusing, but I think it is beyond the bounds of possibility. Let us leave it as it is.

Lord Melchett

We may be getting into more of a tangle than this subsection justifies, but the more I have listened to different contributions, including that from the noble Earl, Lord Avon, the more it has struck me that it might well be useful to make a slightly longer list, as my noble friend was suggesting in his previous amendment, and include representatives of people interested in the conservation of species, but to give the Secretary of State slightly more dis cretion about whether he has to consult the whole list and, if it is impractical, to leave him to consult as many of those on it as is sensible. That, as it seems to me, would meet the points that both my noble friends have been making and, indeed, the points made by the noble Earl.

The Earl of Avon

Yes, we are taking on board the points being made, and when we look at it again we will consider them. So far as the amendment moved by the noble Lord, Lord Kilbracken, goes, Clause 2 obliges the Secretary of State, when considering the making of an order, to consult a representative of those interested in the shooting of birds to be covered by the order. I am sure he must be able to go to those who are most responsible and representative, and I fear that the amendment as drafted by the noble Lord would really create a rather haphazard arrangement.

Lord Kilbracken

In view of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Clause 2 agreed to.

Clause 3 [Areas of special protection]:

Lord Sandys moved Amendment No. 27:

Page 3, line 44, at end insert— ("( ) takes, damages or destroys the nest of such a bird while that nest is in use;").

The noble Lord said: On behalf of my noble friend Lord Bellwin, I beg to move the amendment as set out. This amendment would apply in areas of special protection the general protection afforded by Clause 1(1)(b) for the nest of any wild bird. It has always been the Government's intention to apply in such areas all the basic protections set out in Clause 1(1), but to make them subject to a special penalty under Clause 19(1)(a). I beg to move.

On Question, Amendment agreed to.

5.50 p.m.

Lord Sandys moved Amendments Nos. 28 and 29:

Page 4, line 4, leave out ("unflown")

Page 4, line 5, leave out ("unfledged").

The noble Lord said: If it is the wish of the Committee, these two amendments should be taken together. They are consequential on Amendments Nos. 4 and 5 which sought to tighten the terms of the protection of specially protected birds during nesting, and the protection of young birds in or near the nest. These particular amendments would tighten the protection given to birds in areas of special protection, bringing the terms of Clause 3 into line with those of Clause 1. They would also make the exception for authorised persons in respect of Schedule 2, Part II (pest species), birds consistent with the revised protection. I beg to move.

Lord Melchett

These raise exactly the same points as the amendments which were moved earlier, Amendment No. 4, and some following. We are entirely happy with the Government's suggestions so long as they will also undertake to look at Lord Cranbrook's Amendments Nos. 30 and 31 as they did in regard to the same amendments earlier. Our support for these amendments, as with the previous ones, is conditional on the noble Earl's amendments eventually finding the favour that they deserve with the Government.

Lord Sandys

While I cannot speak for my noble friend Lord Cranbrook, I undertake to bring those matters to my noble friend's attention.

On Question, amendments agreed to.

The Earl of Cranbrook had given notice of his intention to move Amendments Nos. 30 and 31:

Page 4, line 5, leave out ("unfledged") and insert ("dependent")

Page 4, line 5, leave out ("while they are in or near a nest").

The noble Earl said: Having heard the remarks of my noble friend, I will not move my amendments.

Lord Sandys moved Amendment No. 32:

Page 4, line 6, leave out ("on") and insert ("in").

The noble Lord said: This amendment is identical to Amendment No. 8 and ensures that the provisions relating to areas of special protection correspond to those that apply generally. I beg to move.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 33:

Page 4, line 20, at end insert— ("( ) the taking, damaging or destruction of the nest of such a bird;").

The noble Lord said: This amendment is consequential to Amendment No. 27. It would exempt from the prohibitions deriving from an order designating an area of special protection an authorised person who took, damaged or destroyed the nest of a bird contained in Part II of Schedule 2—a pest species. This provision is in line with the exemption contained in Clause 2(2). I beg to move.

Lord Renton

I feel bound to point out that this amendment and Amendment No. 27 illustrate the kind of difficulty and trouble that we get into when we have offences created by ministerial order. I do not wish to repeat what I said when dealing with Clause 1, but the fact that my noble friend has had to move Amendments Nos. 27 and 33 underlines that it is better to have the offences created by the statute and not by statutory instruments.

Lord Sandys

My noble friend Lord Renton clearly points out once more the difficulties in which this particular piece of legislation places us. I hope that he will be satisfied if I assure him that I will draw this matter to my noble friend's attention.

On Question, amendment agreed to.

Lord Sandys moved Amendment No. 34: Page 4, line 22, leave out ("unfledged").

The noble Lord said: This amendment is consequential. I beg to move.

On Question, amendment agreed to.

5.55 p.m.

Lord Donaldson of Kingsbridge moved Amendment No. 35: Page 4, line 24, at beginning insert ("Where").

The noble Lord said: This is rather a complicated amendment. With the leave of the Committee, I should like to discuss with it Amendments Nos. 36, 37, 38, 39 and 41. The position, roughly, is this. We are not at all satisfied with the strength of the powers given to the Secretary of State here and we wish to see them increased. The power of veto of owners, which is in the 1954 Act, has done a good deal to emasculate the sanctuary order provisions which that Act makes possible. Now the Government are putting forward the same formula. This has led to only 30 sanctuaries under the parent Act. Most of these are totally uncontentious in the sense that they are already under the control of local authorities or wildlife conservation bodies, who desire the back-up powers which such orders provide.

In short, they are hardly capable of being used as a protective device in their own right. That is what we all hoped for when the 1954 Act was passed. In other words, if everybody wants you to do something, it is quite easy; powers are required when they do not. What we are suggesting in this group of amendments is that the veto should be removed, and one of my amendments removes it. We should make arrangements that if people have to give up rights as a result of one of these orders, they should be entitled to compensation. Amendment No. 41 goes into the details of how that compensation should be arranged. I do not want to discuss it in detail. Possibly on Report, if the amendments are accepted, one would want to discuss this more fully.

The point at issue is that Clause 3, as drafted, comes nowhere near meeting the requirements of the EEC directive on the conservation of wild birds (79/409/EEC). Although some noble Lords, particularly opposite, seem a little cavalier about whether we do the same as Europe, at least we are members of the EEC—and I hope we remain so, in spite of some of my colleagues who wish otherwise—and when there is a directive which we have accepted the least we can do is obey it. Clause 3 does not, in our opinion, go nearly far enough. One of the things that the Government could do is to satisfy the directive that they will also consider introducing a habitat protection provision as well. This is something that we might be able to talk about on Report. There is no reference to habitat protection here at all.

In seeking to delete subsection (4), I should like to make it clear that I see the provisions of Clause 24 applying to the process of order making, and there seems to be at least some difference between what is laid down in Clause 3(4) and Clause 24(2). That is the main point. I should like to ask the Minister—and he need not answer today, but I should like this explained to me—whether there is any special significance in the differences laid down in the two for the Secretary of State's duties before making an order? In Clause 3(4) and Clause 24 they are not exactly the same. That presumably has a significance which I have failed to understand.

The first three amendments here would alter Clause 3 to read as follows: Where the making of any order under this section with respect to any area affects the exercise by any person of any right vested in him, whether as owner, lessee or occupier of any land in that area by virtue of a licence or agreement, he shall be entitled to receive from the Secretary of State or the Nature Conservancy Council or such person or body as may be specified in the order, compensation in respect of thereof". In other words, we can say to an owner or occupier: "You have got to avoid this particular sort of farming, whatever it may be, and in so far as you can show that it costs money you can claim compensation ".

I shall not go into details of Amendment No. 41, because, if the Government do not accept this far, there is no point in discussing the details, and I have a sceptical feeling that this is rather less innocent than some of the things we have asked the Government to accept. But if they do accept this I shall be happy to get up and explain Amendment No. 41 when we get to it. I hope I have made our position clear, and I beg to move.

Lord Stanley of Alderley

I am sure the noble Lord, Lord Donaldson, knows that I am never against a bit of compensation. It is a question of how much of my soul I am going to have to sell in order to get it. I think that in this case I should have to sell too much of my soul in order to get it, however much he gave me. It would mean, as I understand the amendment, that occupiers would lose their right to advance notice of orders. I may have misunderstood it but I think that is right. Certainly it would mean that the occupiers would lose their right to refuse to donate their land to an area of special protection—

Lord Donaldson of Kingsbridge

With respect, "donate" is a very odd word in this respect.

Lord Stanley of Alderley

I do use very extraordinary words, as I think the noble Lord knows. One can use other words, of course, but I thought that was as good a word as any. The point about this is that it comes to a matter of principle, which is always difficult. If you make people give or donate, or whatever word the noble Lord wants to use, you are on occasions going to lose their co-operation. Here is an area—I am absolutely in favour of these areas: let us be quite clear about that—and you really must have the goodwill not only of the occupier but also probably of his neighbours, too, and I think that any compulsion here will mean that he will quietly shoot the odd goose, or whatever it may be. I think you must get his cooperation; and forcing him to make an area of special protection on his land would not achieve as much as I hope this order would as it stands.

Lord Donaldson of Kingsbridge

May I answer that before anybody else speaks?—because one situation that we visualise concerns somebody who is entirely on the side of conservation and would like to do it but cannot afford to because it would cost him too much. That is a common situation and I think the noble Lord is barking up the wrong tree here because the number of times you would have to force anyone would seem to me to be very few indeed. Generally speaking, I agree that it is not worth forcing these things, and we in the RSPB are well aware of that; but if you can say to somebody: "If you will not plough this essential piece of moor where there are wonderful birds, and if you can give a reckoning of what this will cost you to do in your normal farming, it can be looked at by the Secretary of State", it will be a serious inducement. I think the noble Lord is looking at it from one point of view only: that of force. That is not the main object behind this.

Viscount Thurso

I should like to draw attention to one thing which I feel is escaping the thinking of the noble Lord, Lord Donaldson. At the moment an agricultural occupier of land has the full right to use that land for any agricultural purpose he sees fit. If any kind of order or restriction is placed upon that land it is inevitable that its value to him is diminished, whether he be an owner, a tenant, a crofter or whatever it may be. I think it is very important for us to recognise that any new restriction placed upon the operations which may be carried out upon a piece of land, whether it is right or wrong to do so, will make a financial difference to the man who earns his living on that piece of land. I do not think that is being totally recognised. It is being said: "If a difference is made he may have the opportunity to prove that a certain amount of loss has occurred". But the moment any restriction is placed upon land it makes a difference, and I think we have to be very clear about this because the amount of difference it can make may be quite large, not only in what the man is able to do in his day-to-day operations but as regards what the land is worth to him if he sells it or gives up farming and seeks compensation.

The Duke of Atholl

I should like to support the amendments of the noble Lord, Lord Donaldson, with one exception. That is the knocking out of subsection (4). I agree that, if these amendments are carried, some sort of alteration would probably be needed, but I think it is important that at any rate 4(b) should survive and that every owner or occupier should receive notice of a proposed order before it comes into being. I cannot see how you negotiate compensation with people without informing them first. It is perhaps a minor point, but I cannot quite see why the noble Lord wishes to have subsection (4) omitted as well as subsection (5).

The Earl of Onslow

I should also like to support this amendment. I feel one must have some form of compensation if one is going to make orders on people because, as the noble Viscount, Lord Thurso, said, you take away or diminish a man's rights by so doing. It also slightly worries me—I may not have got this completely right, of course—that if you have somebody who is going to be a "rogue elephant" and will not co-operate or accept the principles of this clause, then all the other farmers are going to be let down. I must admit I should like to see some slight beefing up of this so that, if there is somebody who is totally recalcitrant and who will not co-operate, there will in the ultimate be some fall-back power. I know that we shall come to this on conservation, and so on, and it is quite a complicated and contentious subject. That is my view, and I would support the amendment.

Lord Donaldson of Kingsbridge

That is exactly what we are trying to do.

Lord Melchett

May I just make one point Lo the noble Duke about subsection (4), because, as I understand it—and perhaps the noble Lord, Lord Sandys, will be able to confirm this—that subsection is redundant because Clause 24 provides the opportunity for local authorities, owners and occupiers to object to this procedure; and indeed it enables the Secretary of State to call a local public inquiry. More important perhaps than some of the other things in subsection (4), it requires the Secretary of State to consult with an advisory body, which of course is very important as well. So I think that the noble Duke will find there are provisions elsewhere in the Bill which cover subsection (4).

Lord Donaldson of Kingsbridge

May I reply to one point of the noble Viscount, Lord Thurso? I gave a wrong example to the noble Lord, Lord Stanley. There is no question of altering farming operations; that comes later in the SSSIs. Under this, the kind of thing that would happen is that it would not be worth having a sanctuary in one area if the shooting, which was going on, continued. Therefore, you would have to persuade the owner to let you buy the shooting rights from him, you might want some fences altered or something of that kind. But I do not think farming operations really apply to this subsection. They apply later. The misunderstanding is my fault.

6.11 p.m.

Lord Sandys

May I congratulate the noble Lord, Lord Donaldson, on the use of our very flexible procedures in Committee in moving one amendment and speaking to five simultaneously with such skill—

Lord Donaldson of Kingsbridge

May I just say that the noble Lord the Leader of the House particularly asked us to do so?

Lord Sandys

I am well aware of that. But, naturally, with a particularly difficult group of amendments, it is a matter of some note. I understand the wish to provide powers to protect habitat, and this lies at the heart of the case of the noble Lord, Lord Donaldson. This is also the Government's wish. Where we differ is on method. There are existing nature reserve provisions which work well. Furthermore, we have provided in Clause 26, which has not so far been referred to, the same sort of powers as are proposed by these amendments.

We have retained, with improvements, the bird sanctuary provisions in Section 3 of the 1954 Act, because we see voluntary co-operation between landowners and conservationists as a vital feature of wildlife conservation. The amendments would deny landowners their present right to object and would remove the duty to consult. This, we feel, is alien to our purpose in providing these voluntary arrangements. The consent of all concerned is the best guarantee that protection will be achieved.

A number of points have been raised, and I do not think I shall do justice to every one, but at least I should like to reply to a number of them. The noble Viscount, Lord Thurso, emphasised that we should recognise what the restriction does in this case, and the way in which it diminishes the value of the land and the likely value of compensation. This is a particularly important point—

Lord Melchett

I may be completely misunderstanding this clause. But my noble friend corrected himself, and the noble Lord, Lord Sandys, does not appear to have accepted that correction. He seems to be agreeing with the noble Viscount, Lord Thurso, that this clause provides powers for the Secretary of State to prevent somebody from changing the habitat, from ploughing up something and so on. But so far as I can see, it does not. It covers the killing and injuring of wild birds, the taking and destroying of eggs and so on. It is not a habitat protection clause. I do not see where the noble Lord is getting all this from about interfering with farming operations. That is not in this clause. As he himself pointed out, that comes later in the Bill.

Lord Sandys

The noble Lord, Lord Melchett, intervened just before I was going to say that I am taking legal advice on this matter. I note what the noble Viscount has said. It may not be possible in the course of this speech to reveal what legal advice has been received—

Lord Melchett

If the noble Lord is getting some advice, maybe I could ask him another question which would give that advice a little more time in which to arrive. It concerns the point at the end of Amendment No. 41, which covers the existing bird sanctuaries which were brought into force by the Protection of Birds Act 1954. It seemed to us, when looking at the Bill, that there might be a question that those existing orders would not remain in force after the passing of the Bill. Clearly, that cannot be the Government's intention. I do not think there is any question of that. It may be simply that I have misunderstood the provisions of the clause, or that that is something which the Government could take away and check on, either now while advice is on its way, or subsequently.

Lord Sandys

I hope that I shall not dissatisfy the noble Lord, Lord Melchett, if I am not able to give him a considered opinion. I am sure he will realise that this is a matter for much concern and I know he would much prefer to have the correct answer, and not one which comes too readily to hand.

My noble friend the Duke of Atholl disagreed with one part of the amendment of the noble Lord, Lord Donaldson, in regard to the removal of subsection (4), and he made other observations upon it. Further, my noble friend Lord Onslow sought advice on whether, in order to handle recalcitrants in this field, fall-back powers might be available. I think that the principal answer I can give here is that Clause 24, as drafted, covers all orders. Clause 3, however, relates specifically to land. We believe that it is still needed, but we will look at it further.

I do not know whether that will satisfy noble Lords who are concerned with this particularly interesting part of the clause as drafted, but it is probably as far as we can go today. I would, therefore, ask your Lordships to reject these amendments, as they would invoke measures which are far more appropriate to other parts of the Bill and, in our belief, tend to discourage the co-operative effort which has led in so many areas to the voluntary protection of birds. I hope that the noble Lord may feel able to withdraw the amendments which he has put before the Committee.

Lord Beaumont of Whitley

What other parts of the Bill has the noble Lord referred to? I should be interested to know what other parts cover this point which he referred to in his last sentence. I say that in passing, but we are reaching one of the key parts of the Bill which will come up time and time again, that, in the last resort, where there is a question of wildlife of great importance being threatened—and what we are talking about here is something which the Secretary of State thinks is important enough to make an order about—the rights of the owner or occupier shall be overridden. I entirely agree with my noble friends that compensation is important, but compensation is written into the amendment. Perhaps we should look again at the whole question of compensation and survey it.

Of course I agree with the noble Lord on the Front Bench that if you can have a voluntary system it is much better, and that you should go to as many lengths as you can to have a voluntary system. But when you get a situation where there is a very rare bird which is in danger of extinction, or a bird which is coming back to this country for the first time after a period of years, you want the maximum number of powers to be able to protect it. This is an important matter. It is important enough to override some of the normal rights of ownership. We shall come up against this point time and time again during the passage of this Bill, and it is very important that we should face up to it.

The Earl of Onslow

I should like just to reiterate what the noble Lord, Lord Beaumont, said. If you have voluntary agreements and then one member of society says, "No, I am not going to co-operate at all", all the people who have entered into voluntary agreements have become disadvantaged. Somebody has got away with something. Of course, it is being said that this will be a very small minority; but we are up against a rogue and if that rogue is not dealt with, then, unfortunately, the voluntary system will fall down. If the fall-back powers are there, I think that they will very rarely have to be used. If you ally that to reasonable and fair compensation, the voluntary system will work without the use of those fall-back powers. This is the key point of the Bill. I can see both sides of the argument. I should much prefer there not to be any fall-back powers and everything to be voluntary, but the world is not perfect. It seems to me as simple as that.

The Duke of Atholl

May I add to what my noble friend has said, that in the case of occupiers it is even more difficult if there is no compensation. In many cases they farm a minimal amount of a land. Not to be able to do what they want to do with it could be extremely difficult for them. I can visualise cases where the owners would agree but the occupiers would not agree to the preservation on their land of a particular bird or animal. It seems to me that this would be unfair. If the occupiers as well as the owners were offered some form of compensation, the negotiations would probably be made much easier. I am a great believer in compensation going together with a voluntary agreement. Voluntary agreement and compensation are not necessarily antipathetic.

Lord Donaldson of Kingsbridge

The noble Lord promised my noble friend that he would look at part of the problems which we have been discussing, in particular the question whether existing sanctuaries are affected by anything in the Bill. We believe that the intention of the Government is that they should go on as they are, subject to anything which may be given to improve their position. However, we want confirmation of that.

I think I have had enough support from both sides of the Committee to ask the noble Lord to look at the whole of this question. The whole of this is very difficult, as in the listed amendments. But in fact it is a very simple proposition which has just been put, no doubt better than I could, that the right way to go about this is to get people to agree. Often, the agreement of only one person is needed. Even if there is no power of enforcement there should be compensation for the voluntary agreement if it involves giving up something which is money-making.

Let us suppose that a piece of beach in a wetland area has a little shack upon it which sells tea. I can think of a place in France where I go which is exactly like that. In the summer it destroys completely the presence of any birds. If the owner could be given reasonable compensation for his probably very small takings he would be only too happy to shut the shack. Then we should have a nice sanctuary. That is the kind of thing we are asking for.

We are also saying that there should be a mailed fist behind the glove so that if there is a group of people, one of whom stands out, something can be done about it. I believe that we have made a case and that we have had sufficient support to ask the noble Lord to take this back and look at it as a whole—not only at one or two detailed legal points. If the noble Lord will agree to do that, I shall be happy to withdraw the amendment.

Lord Sandys

First, I must emphasise that the fall-back powers exist in the Bill as drafted. They are to be found in Clause 26. My noble friend the Duke of Atholl—

Lord Melchett

I am sorry but the noble Lord, it seems to me, is misleading us if he says that we should look at Clause 26. Clause 26 deals with sites of special scientific interest. Although it is quite inadequate to the task, it is nevertheless designed to prevent people from altering the habitat of particular areas. The clause we are dealing with is nothing to do with that. As I said before, and I thought the noble Lord then agreed with me, the clause we are dealing with is to do with killing, injuring and taking wild birds, taking or destroying the eggs of such birds—I am looking at the top of page 4 of the Bill—and the disturbing of a wild bird while it is building a nest. With great respect, this has nothing to do with Clause 26.

Lord Sandys

This is the advice which I have received on this point, and I shall verify it once again. It was certainly not my intention to mislead the Committee. I hope that the noble Lord, Lord Melchett, will understand the particular point which I am making. The National Nature Reserve powers and Clause 26 together are a sufficient safeguard in this particular case.

I believe that it would be beneficial if I were to say that I shall refer the discussions which we have had on this amendment to my noble friend. I cannot commit myself at this stage to saying that the Government will be prepared to bring forward an amendment at a later stage. Nevertheless, after the considerable discussion we have had on the six amendments we should do well to have another look at the matter.

Lord Donaldson of Kingsbridge

That is an entirely satisfactory answer. I am not asking for an amendment, although I am hoping for one. However, I am asking for a careful examination and for a statement at the next stage about the position. On those terms, I am very happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36, 37 and 38 not moved.]

6.27 p.m.

Lord Stanley of Alderley moved Amendment No. 38A: Page 4, line 33, leave out ("either").

The noble Lord said: With the Committee's permission, I shall also speak to Amendment No. 38B. As this is the first of a series of amendments tabled in my name and that of my noble friends, I hope that noble Lords will accept that our amendments try to steer a middle path between those who are currently called "eco-nuts" and those who are currently called "the farmer freak approach". I am convinced that in regard to this Bill we all want the same. The best will be achieved by this middle path, although I understand and know only too well that it is more difficult to follow the middle path than it is to argue the extreme case.

The purpose of the amendment is to tighten up the procedure for notifying owners and occupiers of the Secretary of State's intention to designate an area of special protection. The Bill states that where it is impracticable the Secretary of State can opt out of his duty to notify and can merely advertise in the local paper. I believe that this is not good enough. In the United Kingdom it is always possible to find the owner of a piece of land. We are not in Australia. This amendment would oblige the Secretary of State to do just that, as well as to advertise in the local newspaper.

I have a feeling that my noble friend may say that there are similar provisions in the Protection of Birds Act 1954. I believe that the situation here is not the same. First, as has already been said, we hope for very many more areas. Also we hope that in those areas there will be much greater scope. In order to encourage these two points it is much more important that the owner or occupier should be notified. Furthermore, as we have heard, he does have the right to feedback and would not be able to exercise that right, although I hope he would not want to, unless he knew that it was happening.

I hope my noble friend will be able to accept the amendment for two additional reasons. First, it is an infringement of the individual's liberty for the Government to do something to his property without telling him. Secondly, for the first time the Government are proposing in Part III of the Bill that owners and occupiers should be informed when a right of way which crosses their land is proposed or altered. This is a very welcome provision. I cannot see why, if it is provided in that case, it cannot be also provided in this. I beg to move.

Lord Melchett

I would simply like to say that I do not think the noble Lord, Lord Stanley, is right in saying that it is always possible to find the owner of every piece of land. Indeed, the one case where the Nature Conservancy Council have used their powers of compulsory purchase, which they have had since they were set up, was where it was not possible to find the owner of a particular piece of land and it was necessary to go through the compulsory purchase procedure to settle the question of the title to the land and ownership. So in fact there has been what is possibly rather a notorious case since some would have liked to see the Nature Conservancy Council use those powers rather more frequently. Nevertheless, there has been a very well known case which is directly relevant to this Bill where it was not possible to find the owner of a piece of land and it was necessary in that case to use the compulsory purchase procedure to settle the question.

Having said that, I must add that I have considerable sympathy with the point of view expressed by the noble Lord. I should have thought that it might be possible to take what he has suggested, remove the procedure of putting advertisements in newspapers, which does not seem to me to be a wholly satisfactory way of implementing this procedure, and then to leave it as we have proposed in our amendments (which the noble Lord, Lord Sandys, has kindly agreed to look at again) so that at the end of the day it is possible for the Secretary of State to take action.

I do not know whether he will be pleased to hear this or not, but it may be that the noble Lord's amendment would go rather well with the proposals that we have suggested; in other words, it would be possible to take action at the end of the day hut the Secretary of State would have an obligation to contact people and only if that was quite impossible would he be able to carry the matter forward without doing so. He would not have what seems to me to be the "let out" of simply putting an advertisement in the newspaper if he cannot find somebody. But I should like to see it combined with the consideration which the Government are already giving to the amendments which my noble friend has just withdrawn.

Lord Sandys

The Government are sympathetic to this amendment, and while I appreciate that the purpose of these amendments is to introduce certainty for the owner occupier, I must point out to my noble friend that there are cases where such wording could defeat the whole object of the clause, in our view quite unnecessarily. I speak of cases where legal ownership or occupancy cannot be ascertained in circumstances, for instance, where there is multiple ownership, or where the land is common land and no owner is known.

I will give the Committee the Government's assurance that, to the extent that it is possible to do so, every owner and occupier will indeed be notified, but we must have the alternative of being able to satisfy the requirements of the law by supplementing by local advertisement where appropriate. I would ask your Lordships to reject this amendment and at the same time I think I should emphasise that we intend to operate very much in the way suggested, as this has been a matter of practice for some time. I hope that my noble friend will feel able to withdraw this amendment. I appreciate two points which he made; first, the infringement of liberty and, secondly, the point under Part III where owners and occupiers are to be informed of the right of way where it crosses their land.

Lord Stanley of Alderley

I should like to thank my noble friend for that contribution. It makes me very much happier. He is on record as saying that, to say the least of it, they will make the greatest effort before doing this and omitting to tell the owner; and, bearing that in mind, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38B, 39 and 39A, not moved.]

Lord Craigton moved Amendment No. 40: Page 5, line 3, at end insert (" directly affected thereby ").

The noble Lord said: We all want to see these orders moved if they are necessary and we all want the owners and occupiers to be consulted. Subsection (5)(b) is worded to the effect that no owner or occupier has objected to the order and so it goes through. I thought it might be helpful to the Government for the objections to be limited to the owners and occupiers directly affected. There could be frivolous objections and listening to this very interesting debate I could not work out for myself what was the position of an owner of a flat without a garden at all. But if the Minister thinks, as I do, that it is desirable, I have no doubt that he will accept this amendment. I beg to move.

Lord Sandys

I hate to disappoint my noble friend, Lord Craigton, but I am afraid that the Government believe that the amendment is misconceived. The words "directly affected" do not have a very clear meaning, but may seem, when added to the words "owners or occupiers", to refer to the ownership or occupation of land in the area with respect to which the order is to be made. This position is already covered, since the word "those", which immediately precedes the words "owners or occupiers" takes one back to the "owners or occupiers" referred to in Clause 3(4)(b), namely, every owner and every occupier of any land included in the area with respect to which the order is to be made". In our view, the amendment is unnecessary because the wording is superfluous and I hope my noble friend will feel able to withdraw it.

Lord Craigton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord Stanley of Alderley moved Amendment No. 41 A:

Page 5, line 4, at end insert— ("( ) An order made under this section may be amended or revoked by a subsequent order so made.").

The noble Lord said: There may be occasions when the Secretary of State may want to "unscramble" an area of special protection. As I understand it, he cannot do so in the Bill and this amendment would allow him so to do. I beg to move.

Lord Sandys

The intention of this amendment is to provide powers of revocation and I submit that this amendment is adequately covered by Clause 24(1) of the Bill and by the provisions of the Interpretation Act 1978, whereby a power to revoke or amend is implied. I would therefore ask your Lordships to reject it.

The Earl of Caithness

May I just clarify that the Secretary of State can make an order, presumably without the consent of either House of Parliament, but to annul it requires a resolution of either House of Parliament. Is that correct?

Lord Sandys

No; I think it is not correct. I should have to take legal advice before confirming this, but in this particular case the powers to make an order include the powers to revoke it.

Lord Stanley of Alderley

I thank my noble friend for that statement. I am sure he understands that I am not entirely happy without looking it up, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 3, as amended, shall be agreed to?

6.39 p.m.

Lord Melchett

At times we have seemed to be getting into rather a muddle on Clause 3, and I thought it would be useful to remind the Committee of, and to ask the Government about, a couple of questions concerning the powers which relate to the special protection areas—the bird sanctuary areas. The clause creates these areas of special protection but, as I have already said, it is important to remember that this special protection relates solely to the killing or taking of birds, their nests or eggs, and so on, and not to the destruction of their habitats.

I wanted to raise with the Government, so that we could all be clear on this point as we proceed, that they did not in any way see this particular clause meeting the requirements of the EEC directive, which is of course the directive which has led to the introduction of this Bill or at least a major part of it. The directive on the conservation of wild birds requires member states to make provision for the creation of special protection areas for the 74 species on Annexe 1 of the directive, the rare species in an EEC or European context.

In creating those special protection areas member states must take steps to protect the habitat of the species, as well as taking steps to protect the habitat of certain migratory species. Clause 3, as we have been debating it—and indeed even if it were amended in the way I hope the Government will be able to amend it when we come to Report—would not seem to meet that requirement of the directive, would not seem to provide any control or protection for the habitat of the species listed in the directive. I wanted to be clear, as to the scope of Clause 3, that we were not talking about implementing that part of the directive at this stage but at a later stage of the Bill.

Viscount Massereene and Ferrard

I support much of what the noble Lord opposite has said. It is perfectly true that if you have an SSI, as I have in Scotland, over a large area of land, if the habitat is not protected the flora and fauna will eventually disappear. Take over-grazing by sheep; you are destroying the natural regeneration of the natural woodland. I have often come across that situation. You may get undue disturbance from hikers. I have made paths for hikers and, on the whole, they work very well. But, there again, if you have an SSI, is there going to be some control over that?—because disturbance does destroy the habitat of certain rare birds which must have peace and quietness. I will not pursue the point, but I should like to support the noble Lord. I think he has a point.

Lord Sandys

In response to the noble Lord, Lord Melchett, and also to my noble friend Lord Massereene and Ferrard. I think it should be a point very much taken on board by the Government that the EEC directive is not fulfilled by Clause 3. We appreciate that. The EEC directive, as we understand it at the moment, is covered by the powers of the Nature Conservancy Council, the National Nature Reserves and also Clause 26. I do not know whether that fully meets the point of the noble Lord, Lord Melchett. It is not all in this Bill.

Lord Melchett

Yes, that is certainly the assurance I was looking for. I am very grateful to the noble Lord for giving it.

Clause 3, as amended, agreed to.

Clause 4 [Exceptions to ss.1 and 3]:

6.44 p.m.

Lord Kilbracken moved Amendment No. 42: Page 5, line 19, leave out from ("1976") to end of line 23.

The noble Lord said: I beg to move Amendment No. 42. Clause 4(1)(d) states that nothing in Section 1 shall make unlawful the taking by an authorised person of any wild goose or wild duck if the bird is taken solely for the purpose of ringing or marking, or examining any ring or mark on, that or some other bird and then releasing it". The purpose of my amendment is to delete that paragraph. The ringing and marking of all wild birds is a very necessary and important activity and a great deal of it goes on. It is, however, a highly skilled operation. The national ringing scheme in Britain is operated by the British Trust for Ornithology which ensures that all new ringers are fully trained in trapping, handling, identification and ringing of birds before they are issued with a licence to operate on their own. Your Lordships will be aware thst there is already provision in the Bill, in Clause 15, for such licences to be issued.

I am putting it to the Committee that it should not be permissible for an unskilled person to do important work of this kind just because he is an authorised person, which of course cannot mean that he is necesssrily in any way qualified for the job. I should add that this amendment is strongly supported by the RSPB, and I very much hope that for once the Government may show some signs of accepting an amendment and regarding it in a favourable way. I draw the attention of the Committee to the fact that the present wording is quite strange, because it first talks about the taking by an authorised person of any wild goose or wild duck", and then it makes it perfectly legal to examine any ring or mark on, that or some other bird and then releasing it Why a person should first of all be entitled to take a goose or duck, but then to ring or mark or examine any ring or mark on some other bird, is not immediately obvious. Amendment No. 62 would be consequential upon this amendment deleting a similar paragraph from Clause 5. I feel strongly that it is important that vital work of this sort should be done only by people qualified to do it. I beg leave to move the amendment.

The Earl of Onslow

Can we perhaps have from the noble Lord, Lord Kilbracken, some evidence of how much, if any, damage has been done by unskilled ringing, and is it a widely practised occupation?

Lord Melchett

From my understanding of the matter, I should like very strongly to support my noble friend's amendment. The objection to these few lines of the Bill is twofold: firstly, that we are not talking about ringing, we are talking about capturing birds to see whether they have rings on them and to examine the rings. It seems to me that in practice that is only likely to happen in circumstances where people are ringing birds and therefore operating under licence. In other words, almost all retraps, as I think they are known by the experts, occur when somebody is catching birds to ring them either in a net or in a specially designed trap. If they were catching birds to ring them they would be doing so under licence and they would of course be qualified licensed ringers. In those circumstances, some of the birds they catch, usually very few, would have rings on them; they would catch the bird, examine the ring, take details and release the bird again. That activity is covered already and you do not need this paragraph of the Bill to do that.

The worry about this particular bit of the Bill is that it will be used by unscrupulous people as a defence. They will be caught by the RSPB investigator or somebody else in the action of taking a bird which it is illegal to take—a young peregrine or something of that sort—and they will say, "Ah well, I just took it to see whether it had a ring on it. The Wildlife and Countryside Act says that that is quite all right". It seems to me to be a quite unnecessary loophole, and I would be interested to know whether there is any argument for leaving it in the Bill.

Lord Kilbracken

Before the Minister replies, I should like to refer to the two interventions which have been made. I understood my noble friend Lord Melchett to say that this paragraph was not concerned with ringing. But, in fact, it reads: if the bird is taken solely for the purpose of ringing or marking, or examining any ring or mark on, that or some other bird and then releasing it". So, if he did say that, I think that he is mistaken.

So far as the noble Earl, Lord Onslow, is concerned, I am afraid that I do not have any figures to show how frequently it happens that an unskilled person does this kind of work. But if, as he seems to be suggesting, it is happening only seldom, then it makes it less necessary to have this paragraph and all the more desirable that the paragraph should be deleted.

Viscount Massereene and Ferrard

I know an area in Lincolnshire where they were trapping a lot of geese to see whether they had rings on them and to ring them, but the geese do not now visit those farms.

Lord Melchett

I am grateful to my noble friend because I was mistaken. In fact, with art eye on the clock I was so busy wondering when I was going to get my supper that I was not looking at the Bill carefully enough. This paragraph is a great deal worse, it seems to me, than I had suggested. Ringing is, of course, a highly complicated and difficult activity. My understanding is that a qualified ringer would need to catch about 1,000 birds under very careful and expert supervision before being allowed to ring on his own. It seems to me that this paragraph completely undermines that type of very careful and professional training of people and I would hope that the Government would agree to its deletion.

Lord Renton

I think that I am in favour of this paragraph, but I find it a little difficult to follow, especially when we find in the last line the words: or some other bird". Those words come very strangely at that point in view of the earlier reference to: wild goose or wild duck". I should be grateful if whichever of my noble friends is to reply could make it clear whether it is intended to be a sort of comprehensive reference to any other bird that might be taken for examination and then released, or whether it is supposed to be confined to wild geese and wild duck.

Lord Swinfen

I should like to support what my noble friend has just said because as I read the paragraph it will be a defence against prosecution if you wish to ring a wild goose or duck but not any other kind of bird; nevertheless, you can examine any bird of any variety for any marking.

Lord Sandys

Both of these paragraphs in the Bill continue provisions in the Protection of Birds Act 1954, as amended by the Protection of Birds Act 1967, and are included as a result of consolidation. However I have listened with interest to what the noble Lord has said and will, with the permission of the Committee, request the Advisory Committee on the Protection of Birds, who are meeting very shortly, to consider this particular matter.

I think that all noble Lords who have contributed to the discussion have raised matters of real anxiety. Of course, it is part of the purpose of the Bill to act as a measure of consolidation of those two statutes. It may well be, as the noble Lord, Lord Melchett, has pointed out, that there could be a loophole in the law through which unscrupulous persons may be able to penetrate. I would in no way be able to say at this stage what the Government's view is on this matter until the advisory committee has met at the end of this month.

The Earl of Onslow

Before the noble Lord withdraws his amendment—which I have a feeling he may do—would it be no defence if somebody has a peregrine falcon sitting in a cage for a week or two and he says that he is examining it to see whether it has a ring? I do not think that any sensible magistrate would accept that as a defence.

Lord Melchett

No, but what has always been very difficult about enforcing this legislation is that at that stage one is then faced with the defence: "Well it was bred in captivity". I know that when we come on to ringing we are tightening up the position. But it would be most unfortunate on the very rare occasions when somebody manages to catch an individual taking something actually at the nest or close to it, for us to have provided, unwittingly, a rather good defence to that action. For myself, I am grateful to the noble Lord, Lord Sandys, for the action that he has undertaken to take.

Lord Kilbracken

I am grateful to noble Lords who have taken part in this discussion and to the noble Lord, Lord Sandys, for undertaking to take the advice of the advisory committee. I think that it is very desirable in this case. I listened with particular attention to the point made by the noble Lord, Lord Renton, who picked up the matter which I had raised about the introduction of this strange "other bird" in the last line of the paragraph. I simply do not know how this "other bird" gets into the net, as it were. The provision is that nothing shall make unlawful: the taking by an unauthorised person of any wild goose or wild duck". We understand what is meant by that, but then it goes on to say: if the bird is taken solely for the purpose of ringing or marking…that or some other bird". We are left with the picture of a man who goes out to net duck and geese, and when he comes to examine the net he sees one or two other birds in the net with the duck and geese. How else would the other birds get there? What species are they? Is he then allowed to ring or mark the birds of these other species before releasing them? The whole thing has a rather Alice in Wonderland flavour. Therefore, I hope that the Government will consider the deletion of this paragraph, because that is the best thing to do with it. It should be left to skilled people, and skilled people only, with a licence under the appropriate section to do this work. None the less, of course, in the light of what the noble Lord has said and of the undertaking that he has given, I am glad to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

This is probably an appropriate moment to adjourn this Committee stage and I think, after the intervening business has been taken—provided it does not overstretch the mark—we should resume the Committee stage for your Lordships' information at a quarter to eight. I beg to move that the House do now resume.

Moved accordingly and, on Question, Motion agreed to.