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Clause 3—(Power To Establish Bird Sanctuaries)

Volume 527: debated on Friday 21 May 1954

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Lords Amendment: In page 3, line 17, at end, insert:

(c) that any person who, save as may be provided in the order, enters into that area during any period specified in the order shall be guilty of an offence against this Act:

I beg to move, "That this House doth agree with the Lords in the said Amendment."

The Amendment enables the Secretary of State to make an order providing that a bird sanctuary shall be strictly enclosed during part of the year. The Minister has power to make orders under the National Parks (Access to the Countryside) Act, 1949, but Clause 3, apart from keeping alive existing orders, provides for the setting up of bird sanctuaries for the protection of birds and their eggs, and gives rather more comprehensive protection to all forms of bird life than that Act. We should bear in mind that the creation of bird sanctuaries under the Act changes the user of land for planning purposes; and we think it wrong to sterilise land merely to protect birds for part of the year.

We have to ask whether the Amendment can be enforced and whether the machinery of the National Parks Act is more appropriate than the machinery of the Bill, in that game wardens might be able to make the protection more effective. We do not wish to include anything in the Bill which cannot be carried out. The Amendment only gives the Secretary of State power to restrict access to the sanctuary and he does not have to include any more than this in his order. The Bill will include supervision in cases where it is desirable that the sanctuary should be undisturbed.

Question put, and agreed to.

Further Lords Amendments agreed to:

In line 23, leave out "(i)."

In line 24, after "offence" insert "(i)."

In line 28, after first "or" insert "(ii)."

In line 29, after "or "insert "(iii)"

In line 33, leave out "(ii)" and insert:

(iv) by reason of the taking or destruction of an egg of a lapwing before the fifteenth day of April in any year:

Lords Amendment: In page 3, line 38. leave out subsection (2) and insert:

(2) Before making any order under this section the Secretary of State shall consult with any local authority within whose area the area with respect to which the order is to be made or any part thereof is situated and shall give particulars of the intended order either by notice in writing to every owner and every occupier of any land included in the area with respect to which the order is to be made or, where the giving of such notice is in his opinion impracticable, by advertisement in a newspaper circulating in the district in which that area is situated, and he shall not make the order unless either—
  • (a) all the owners and occupiers aforesaid have consented thereto; or
  • (b) at the expiration of a period of three months from the date of the giving of the notice or the publication of the advertisement, none of those owners or occupiers has objected thereto.
  • I beg to move, "That this House doth agree with the Lords in the said Amendment."

    The existing subsection provides that the Secretary of State shall not make an order establishing a bird sanctuary without the consent of every owner and occupier of the land concerned. On further examination it is clear that in some cases it would be impossible for the Secretary of State to comply with that requirement. It would raise such obstacles, that the making of the order would be virtually impossible.

    In the case of the ordinary private landowner no difficulty would arise, but the position would be extremely complicated where there are a number of owners. All sorts of people may have rights, for instance as commoners. Having regard to the definition of "occupier" in Clause 14 they would be technically occupiers and it might be impossible to discover who had the rights of ownership of the land, or to trace them. We should have to try to trace people who had little or no interest in the land, but whose consent would be essential before the order could be made.

    These difficulties are by no means imaginary and have been shown to exist already by experience, for example, in negotiating agreements for the establishment of a nature reserve. The Forestry Commission have had the same experience. The Amendment is designed to avoid these difficulties whilst safeguarding the rights of owner-occupiers.

    12 noon.

    The effect of the Amendment is that the Secretary of State has to notify every owner and occupier about the intended order by notice in writing, but where that appears to be impracticable, by public notice in a local newspaper. The Secretary of State has not to make an order unless all owners and occupiers have consented to it, or unless none of them have objected to it within three months. In other words, every owner and occupier still has a complete right of veto in respect of his land on any proposal to make a sanctuary. Where the questions of ownership and occupancy are secure the Secretary of State will be able, by means of public notice, to avoid undue administrative difficulty.

    The second part of the Amendment sets out the procedure which must be followed. In particular, the Secretary of State must give to any county or county borough affected an opportunity to submit objections or representations. This provision has been made at the instance of the Association of Municipal Corporations. It requires that before making an order, under Clause 3, to establish a bird sanctuary the Secretary of State must consult every non-county borough or district council concerned as well as the county council.

    This seems really to be opening the door very wide to a person who in accordance with the definition Clause may make a very doubtful claim to being an occupier. Anyone who has had anything to do with claims under the various Acts governing commons knows how hazy and almost impalpable some of the claims turn out to be when examined.

    I do not see any machinery in the Bill —although it may be there—for testing the claim of an objector to be a person entitled to make the objection. A person may say that a piece of land which he occupies has at some time in the past had rights of common exercised in respect of it, but there are cases in which it has been demonstrated that the subsequent use of the land has amounted to an abandonment of the claim to exercise rights of common.

    For instance, I know of one case where a piece of land had at some time or other been covered by a concrete reservoir. Quite obviously, sheep cannot be grazed during the time a common is covered in that way. They will not get very fat on anything they may pick up there. A great many people imagine that they have rights of common when they have not and when the land which they occupy never has had a right of common. Is there anything in the Bill which enables a person appearing in response to the advertisement to have his right to object tested?

    As the right hon. Gentleman the Member for South Shields (Mr. Ede) has asked a specific question, I must again ask leave of the House to reply.

    This is a very difficult point. There is nothing written into the Bill. As originally drafted, and as it left this House, the Bill contained a much more difficult provision. It said that no sanctuary could be made without the specific consent of either the owner or occupier concerned. It was to facilitate the creation of a sanctuary that this Amendment has been proposed.

    I do not think that we could go further and say that the Secretary of State had only to make an order for a sanctuary, without receiving the consent of the owner or occupier concerned. That, I submit, would be the only practicable way to get over the difficulty suggested by the right hon. Gentleman. That would be going too far. It is to get over the bulk of these difficulties that I am asking the House to agree to this Amendment today. I hope that the Under-Secretary of State may be able to say something further on this difficult point.

    I can assure the right hon. Gentleman for South Shields (Mr. Ede) that the Amendment does nothing to exacerbate the kind of difficulty he has in mind.

    As I understand, the Bill, as drafted, meant that the Secretary of State had to consult persons whom he thought were occupiers or had some right under the Bill when it becomes an Act. Under this proposal the Home Secretary will publish an advertisement and the claims may be shadowy. Some person whose claim is so shadowy as not to exist at all may put in an objection, and, as I understand, one objection kills the opportunity of the Home Secretary to proceed.

    I do not think it is right to say that, as drafted, the Bill is limited to those people whom the Secretary of State, so to speak, chooses. Under subsection (2) of the Clause a person would have power to object because he had not been consulted. However, I do not think that the right hon. Gentleman's difficulty will, in practice, arise. There might, of course, be a dispute as to whether a person was an occupier or not, but that would be a proper matter to be decided by the courts and I think would have to be decided by them. Although it is unlikely to arise that would be the way to deal with it.

    Question put, and agreed to.