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Lord Kimball moved Amendment No. 536AB:

The noble Lord said: The amendment is really a matter of the meaning of words. "Recklessly" means regardless of the consequences. "Deliberately" means after very careful consideration.

It is all too easy for any bird to desert its nest. It is made even easier by the misguided policy of the RSPB, which does nothing whatever to control magpies and hooded crows. I always remember that the black-throated diver used to nest regularly at the bottom end of Loch Naver. We used to have a policy by which people did not fish down there because if one fished down there the bird left the nest and immediately the hooded crows came in and ate the eggs. That happened at least four or five times each year. So people took the deliberate decision not to fish down there.

I remember when we had an oystercatcher which always nested in a very stupid place. For the first five years of her life, she never succeeded in hatching a chick. During her last remaining four years--I was amazed at how long oystercatchers could live--she had no husband, but she continued to sit on a pink stone on a particular piece of shingle by the river where she had never successfully managed to breed. Close to the end of this period, I got another oystercatcher's egg and put it into her nest. I can assure noble Lords that, after eight years, never was there such a bird once she was able to raise a chick.

In my opinion, that was a deliberate action which was carefully considered and should not be turned into an offence in this way. I beg to move.

Lord Reay: The purpose of this amendment, to which I have added my name, is to remove the offence of "reckless disturbance" from the Bill. The introduction of this new offence, punishable by imprisonment--namely, that of recklessly disturbing birds listed in Schedule 1 to the 1981 Act--is causing considerable concern to many of those involved in land management. I should declare an interest here as someone involved in estate management.

The potential application of this provision goes very wide. It could catch the wholly innocent farm worker who perhaps disturbs a nesting barn owl as a result of entering a building in which he stores his equipment. It could catch the upland gamekeeper who inadvertently disturbs an early nesting Schedule 1 bird while heather burning. It could also catch anyone cutting a hedge, hacking down shrubbery or mowing a hay meadow. Without intending to, anyone carrying out such a task could harm or disturb listed nesting birds or their young.

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Similarly, the introduction of the word "recklessly" on line 9 of page 108 of the Bill in relation to wild animals would make it an imprisonable offence to unintentionally but recklessly harm any shelter used by a listed wild animal such as the common frog or any species of bat.

Can the Minister explain how the Government intend this new clause to operate in practice? Do they really intend to expose innocent farm workers and others to the risk of imprisonment while carrying out their legitimate activities? Who will the Government rely on to enforce this provision?

I suggest that this is an oppressive and even a savage proposal, introducing penalties wholly out of proportion to the gravity of the offence and which will do nothing at all to win friends to the cause of bird and animal protection. I beg the Minister to think again.

Baroness Byford: I rise briefly to support this amendment moved and spoken to by my noble friends. I hope that the Government will feel able to accept it. As my noble friend Lord Reay has just pointed out, the proposal will impose a criminal offence on those who unfortunately may cause difficulty, even though not they had not done so deliberately. Anyone involved in the modern technologies of today's farming practices will be well aware of the issues surrounding hedge cutting, to name only one aspect.

I believe that my noble friends have made an important point here. I hope that the Government will respond sympathetically.

Baroness Farrington of Ribbleton: I appreciate the concerns expressed by noble Lords as regards the implications of our new offence of recklessly disturbing certain protected bird species.

However, we have clear information that in disturbance cases, genuine enforcement difficulties have arisen. The requirement that there has to be proof that any disturbance was caused intentionally has been found to be difficult. Clearly it cannot be right that a person found climbing a tree to visit a nest can escape conviction by claiming that he had not intended to disturb the birds.

We have been particularly careful to introduce the recklessness test only where it is appropriate. Our rarest birds are at their most vulnerable when they are at the nest, and I believe it is right that we should give them the extra protection they deserve. Introducing the test of recklessness will mean that a prosecutor will have to show that a person either deliberately took an unacceptable risk or failed to notice an obvious risk which caused disturbance.

The Wildlife and Countryside Act provides a defence that a person will not be guilty of an offence if he can show that something which he has done which would otherwise have been an unlawful act, was in fact the incidental result of a lawful operation and could not reasonably have been avoided. I should also add that an accidental disturbance is not an offence.

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I hope that I have been able to reassure noble Lords that law-abiding countryside workers have nothing to fear from these provisions. In such circumstances the police are the statutory enforcement agency. In the light of these assurances, I hope that the noble Lord will feel able to withdraw his amendment.

1.30 a.m.

Baroness Byford: Before my noble friend responds, I am grateful to the Minister for that clarification, particularly in regard to farm workers going about their normal business. I support her view that taking eggs from birds' nests is not desirable. It is something we are anxious about. I am grateful to the Minister for clarifying that. The Minister is looking puzzled.

Baroness Farrington of Ribbleton: For the sake of clarification, I should say that removing eggs is an offence. I made reference to people climbing to a nest even without the intention of removing eggs. That would be reckless disturbance.

Lord Kimball: In view of what the Minister has said and the fact that only a police constable can deal with such matters, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Greenway moved Amendment No. 536B:

    Page 108, line 12, leave out ("disturbs") and insert ("molests").

The noble Lord said: Paragraph 5 of Schedule 10 was inserted in another place by the Government without consultation with boating interests and despite the fact that the marine study working group is looking at these matters at the moment. It introduces a new subsection (4A) to the Wildlife and Countryside Act which makes it a criminal offence intentionally or recklessly to disturb a dolphin, a whale or a basking shark. It is aimed primarily at motorboats and personal watercraft--or jetskis, as they are more commonly known. I have no quarrel with that; it is a perfectly laudable aim. However, I am concerned that the provision might possibly impinge upon the lawful right of innocent passage in coastal waters.

It is true that the Wildlife and Countryside Act allows a defence where the alleged offence was the incidental result of a lawful operation and could not reasonably have been avoided. Navigation activities normally amount to a lawful operation, but it would seem that any disturbance of cetaceans and basking sharks which is the incidental result of such navigation can reasonably be avoided by keeping away from an area where such creatures may reasonably be expected to be found and by immediately leaving any area where they are encountered.

"Disturbance" is not defined for the purposes of the new subsection but, given its ordinary meaning, would include any interruption of the enjoyment of dolphins and so on of their habitat and not simply action amounting to some kind of molestation.

Some Members of the Committee may have boating experience. They will know that dolphins are very playful creatures. They are also highly manoeuvrable,

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much more so than any boat. It would be difficult for a yachtsman to avoid an over-zealous enforcement officer taking photographs in which the boat might appear to be disturbing dolphins. In this case, enforcement and policing will be extremely difficult. It conjures up wonderful Keystone Cops type images of young men on jetskis being pursued by policemen on jetskis with blue flashing lights, bouncing across rough seas.

Joking apart, it seems wrong that recreational yachtsmen and others should be put at jeopardy and have the reasonable exercise of their activities constrained by a prohibition on disturbance which not only involves no concept of harm or adverse impact, but would also permit an officious and wide-ranging anti-boating stance to be taken in pursuit of the precautionary principle. It is for that reason that I have tabled the amendment. It attempts to narrow down the wide-ranging impact of the concept of "disturbance".

There is increasing pressure for the delineation of coastal areas for cetacean protection. The two redoubtable noble Baronesses on the Government Back Benches will not be surprised when I say that the Royal Yachting Association and other boating authorities are increasingly concerned that, if we go further down this road, in years to come substantial areas of coastal waters could be denied to small craft--despite the fact that scientific knowledge of what may or what may not disturb such creatures is still at a basic level. I beg to move.

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