Clause 46 - Protection for nests of certain birds which re-use their nests
Natural Environment and Rural Communities Bill
4:45 pm
James Paice (Shadow Minister (Agriculture), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)
The clause makes it an offence at any time to damage the nest of a wild bird listed in the new schedule. Three species are listed at present, but it also gives the Secretary of State the power to add to that. Obviously, as with our discussion this morning, there cannot be any difference between myself and the Minister about the Government’s objective. I certainly support the clause as far as it goes, but I am still slightly puzzled.
I looked at the three listed species. There is one pair of golden eagles in England. There are no white-tailed or sea eagles in England. The nearest are hundreds of miles away in the Western Isles and the Hebrides. There are two or three pairs of osprey. This is not exactly a huge issue as far as those three species are concerned. I should like to think that the white-tailed eagle might progress to English or Welsh shores—or even Sheffield—but I do not think that that is very likely in the near future. Therefore inevitably there is a question mark over why the Government are doing this, particularly as I am not aware of any evidence that there is a problem.
It is already an offence to interfere with the nest, eggs or young of these, and most other, species of bird during the construction or use of the nest when the bird is using it for the purpose of hatching and rearing its young. Therefore we are talking about out-of-season interference. I am not aware of any incidents of out-of-season interference with those nests. I do not say that there has not been any, but it does not seem to be a huge issue at the moment. If the Minister has any evidence in relation to England I am sure that he will produce it in due course.
The clause provides year-round protection for nests of these species, which have one factor in common—they re-use the same nests. Again that is not common to most species of birds, although a few more than these three regularly re-use their nests. Raptors such as these three have a number of nest sites and they use them, not necessarily consecutively, year after year. They will jiggle around and use different ones every year. It is believed that that is a natural instinct, which minimises the parasites that inevitably accumulate in birds’ nests. The reason why they have a few different sites is clear, and we should do what we can to protect them.
Nest robbery is already an offence; there were no instances of nest robbery from those species in England and Wales in 2003 and just two offences in Scotland. That raises the matter, which I touched on earlier, of the possible extension of the schedule to other species. I cannot see why that would be necessary for species that do not re-use their nests. We therefore need to ask whether we are talking about a nest itself or the vicinity. If a nest is damaged or destroyed, the bird will probably be unable to use it again. However, if we are talking about a bird that nests in the vicinity—in the same area of ground or on a cliff—the situation is more difficult. Apart from anything else, proof that it was a nest site will become much harder. However, if we are just talking about damaging, out of season, a nest on a cliff or on the ground that the bird used last year or two years ago, what is to stop the bird nesting a few feet away or rebuilding the nest rather than re-using the old one? I am a bit concerned about that, and I hope that the Minister will clarify the issue of the possible extension of the schedule.
We must consider whether making such incidents an offence will become a serious problem for land managers with bracken clearance, for example. Land managers want to mow or flail bracken, annually or more often, to clear the site and prevent the bracken from invading the hillside, and to undertake hedge cutting. All manner of things, as long as they are done sensitively and out of season in the winter months or in the autumn and, on agricultural land, in accordance with the cross-compliance conditions of the single farm payment, will not interfere with bird nesting. I am apprehensive about where the overall approach of extending year-round protection is going.
In respect of the three species, I am more than happy to support the Minister on clause 46 but I question the scale of the problem—or the lack of scale of the problem, to be more precise. Is the proposal really necessary? What further action should be taken?
Amendment No. 119 would insert the word “intentional” in new paragraph (aa) in clause 46(2). I cannot see how anyone could take, damage or destroy the nests of the three species unintentionally or accidentally, given where they nest, other than crashing a light aircraft into them, as the nests are huge structures in a tree or on a cliff face, which are visible to anybody. Clearly, any damage would be intentional.
However, in the context of the extension of the schedule, we could be talking about accidental damage. For example, if the provision were extended to ground-nesting birds, somebody could easily accidentally damage a nest by bracken cutting or mowing out of season. The person might not be aware that the bird had nested there six months or a year or so earlier. Intentionality—separating out the accidental from the intentional action—therefore becomes that much more important.
Later I shall move another amendment, which refers to the word “reckless”. If the Minister were to say that he would be sympathetic to an amendment involving a reference to someone who intentionally or recklessly “takes, damages or destroys”, I would be perfectly happy. However, I am a bit concerned that, as the Bill reads, if the schedule was extended at some stage, people could find themselves prosecuted when they had not set out to damage a nest, and were not even particularly reckless.
Amendment No. 120 sets a time scale. As I mentioned, eagles and ospreys regularly have a number of nest sites and they may not use them all each year, particularly in the case of eagles. It is clearly logical that the protection extends to more than the site that they used last nesting season. However, it is not reasonable that a nest is a nest for ever and a day, which is how things stand as the Bill is drafted. There needs to be a sensible time limit that makes it clear when a nest ceases to be protected in this way—for instance, because that particular pair of birds have died or moved on and others have not taken up the nest site. I discussed this matter informally with the RSPB and it is sympathetic to the idea of a time limit. It suggested that five years might be better than three, and I am certainly not going to push for three years, but I hope that the Minister will accept the principle that one should not just include in legislation a provision stating that once an eagle has made a nest it will be protected for ever and a day, even if no eagle ever goes anywhere near it again. That detail needs to be addressed.
Amendment No. 143 seeks to define what is meant by “nest”. Again, I believe that that is necessary to make the Bill meaningful. I suspect that the Minister will say that the legislation about damaging nests when birds are using them does not define “nest”, but I think that a definition should be included in this context because we are talking about specific species and nesting sites. That is particularly the case in relation to those species that nest on cliffs or sheer faces. In some cases, the nest is a huge structure, but it is not always obvious. I am a bit concerned that if we do not define “nest” there is a risk that people will say, “Well, I once saw a bird perching there,” and therefore that spot could be construed as a nest. Once we move on to the possibility of extending the schedule to other species, that becomes more important.
Amendment No. 143 seeks to define “nest” in a way that most people would consider to be perfectly reasonable, as
“a structure constructed by a bird for its eggs and young.”
That seems pretty unequivocal. It refers to something definitive, which is better than the vague term “nest”. That will be particularly true if the schedule is ever extended, because some birds do not make nests. They just lay their eggs on a ledge, or on the ground.