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Clause 14—(Interpretation)

Volume 527: debated on Friday 21 May 1954

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Lords Amendment: In page 12, line 26, after "Board" insert:

"any statutory water undertakers within the meaning of the Water Act, 1945, any local water authority within the meaning of the Water (Scotland) Act, 1946."

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

This Amendment adds water authorities to the bodies which may authorise people to kill birds in the Second Schedule. It seems a reasonable Amendment, because many water authorities are local authorities and, therefore, would in any case have the power, under paragraph (b) of the definition of "authorised person," within their own local authority areas. Their reservoirs, however, may often lie outside their areas, and it seemed appropriate that the power of authorisation should be extended.

The point of the Amendment is that some water authorities, supported by the Ministry of Health, are much concerned about the pollution of reservoirs by seagulls. They want to be able to authorise their officers to take action against the gulls. These may, of course, include species which are not included in the Second Schedule, and if so it may be necessary to add them by local order for the areas affected, but this would be done only after consultation with the advisory committee.

Question put, and agreed to.

Lords Amendment: In page 12, line 42, after "occupier" insert:

in relation to any land other than the foreshore."

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

I am afraid that after the Bill had left the House I discovered a weakness in it. This Amendment seeks to set it night, and perhaps I should explain it at some length because it is fairly complicated. It relates to Clause 3, dealing with the power to establish bird sanctuaries. Several existing sanctuaries include parts of the foreshore. Orders establishing them will be continued in force by Clause 3 (3), but under the Bill as it left the House I found it was virtually impossible to make new sanctuaries for areas of foreshore, and the Amendment puts this right.

The reasons why it was virtually impossible are these. The second proviso to Clause 3 (1) provides that an order shall not affect the exercise of the right of the occupier. Clause 3 (2), even as altered by an earlier Amendment, gives every occupier the right to veto any proposals to make a new order—and that was something on the lines put forward by the former Home Secretary. Clause 14 (1) defines occupier as including
any person having any right of … shooting or fishing …"
In Scotland, the general public probably have a right to shoot wildfowl on the foreshore, although that is very much in dispute, and in England there is a public right of fishing on the foreshore except where it belongs to a subject. Usually it belongs to the Crown. The general public as a whole, therefore, come within the definition in Clause 14 of "occupier" in dealing with the foreshore both in Scotland and England.

Every individual member of the public would have the right to veto the making of any further order under Clause 3, which, of course, would be absurd. The Amendment puts the matter right by excluding members of the public with un-covenanted rights of shooting, fishing, etc., on the foreshore from the definition of "occupier." I think that will to some extent put the former Home Secretary's mind at rest.

An order under Clause 3, however, still will not operate against the person who has individual shooting rights on the foreshore under a licence or agreement, or who owns or occupies a part of the foreshore in the ordinary sense of the word. Such an owner or occupier would still have the right to veto the making of any new order.

I should like to take this opportunely to say something more about the creation of bird sanctuaries which include part of the foreshore, because there has been a little disquiet among those who are habitually wildfowlers and who fear that large areas of the foreshore may suddenly be created as sanctuaries and that they wall be unable to carry on their sport. In amending the definition of "occupier" there is no suggestion that the power to create sanctuaries on the foreshore should be lightly used. It is clear that the rights of shore-shooters must be respected but it seems reasonable that, if we are to have provision in the Bill to create a sanctuary, we must be able to do so on the foreshore, if necessary.

The existing Wild Birds Protection Acts allow this on the application of the local authority and, as I have said, a number of existing sanctuaries include part of the foreshore. The part of the foreshore included may be private property, but on the other hand it may not be private property. Cases may occur where there is a good reason for making a foreshore sanctuary—for instance, to protect terneries, or breeding waders or even to provide a refuge for certain migratory birds when they reach our coasts.

The Bill includes substantial safeguards against unreasonable use of this power to make sanctuaries in a way which would deprive shore-shooters of their rights. The Secretary of State is required by Clause 13 to consult the advisory committee and to give the public opportunity for objections or representations before he makes an order. There is, in addition, the most powerful safeguard of all. The Secretary of State will be answerable to Parliament for what he does. This Amendment simply preserves the existing power under the Wild Birds Protection Acts to establish a sanctuary on the foreshore.

While I recognise that this Amendment is essential—without it there would be a legal flaw in the Bill—and while I support it, I think its effect on wildfowlers should be put on record. Of all the owners and occupiers in whom sporting rights rest, they alone will not have the benefits conferred by the new subsection 3 (2) of receiving

"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.…"
They will not have that advantage, and the reason is that, at any rate in England, the rights of shooting on the foreshore rest mainly on the courtesy of the owners or on long-established custom and are not legal rights in the same way as are the rights of other owners and occupiers of land. I sincerely trust that the Secretary of State will take this matter into consideration and perhaps extend the same courtesy to representative bodies of wildfowlers as is extended by the present owners who let them shoot.

I hope he will try to give them as much notice as possible of any intended changes in the status of the land, for instance where it is to be made into a sanctuary. There is not as much need for a sanctuary on the foreshore as in other places, because sanctuaries are largely for the purpose of encouraging birds to breed, and no bird can breed between tide marks.

Question put, and agreed to.

Lords Amendment: In page 12, line 46, after "bird," insert:

"in sections five, ten and twelve of this Act means any wild bird, but in any other provision of this Act."

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

This Amendment raises a rather interesting legal point. The definition of wild birds under Clause 14 has the effect that the Bill will not apply to game birds, the reason being that the Games Acts already contain provisions for protecting them fixing close seasons and controlling sales.

It has, however, been pointed out that the Wild Birds Protection Acts of 1904 and 1908 which make it an offence to place gin-traps and similar instruments where they are likely to injure wild birds or to use hooks for catching wild birds apparently applies to game birds. Clause 5 of the Bill which re-enacts and adds to this provision, like the rest of the Bill, does not apply to game birds. In consequence, it would not be an offence to use any of the methods prohibited by Clause 5 for catching game birds, except that the Game Act, 1831, prohibits the use of poison for taking game.

This Amendment extends Clauses 5, 10 and 12 to game birds. Clause 10, as well as Clause 5 is mentioned so that licences to use some of the methods prohibited by Clause 5 for special purposes may be granted in respect of game birds, as well as of other wild birds. Clause 12 is mentioned so that the power of the police under subsection (1, b) of that Clause to seize and detain for the purpose of proceedings—to be produced in evidence-any wild bird, in the possession of a person found committing an offence under the Bill would extend to a game bird, in respect of which an offence has been committed under Clause 5.

Question put, and agreed to.