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Clause 46 - Protection for nests of certain birds which re-use their nests

Natural Environment and Rural Communities Bill – in a Public Bill Committee at 4:45 pm on 28th June 2005.

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Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 4:45 pm, 28th June 2005

I beg to move amendment No. 119, in clause 46, page 17, line 3, at beginning insert ‘intentionally’.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

With this it will be convenient to discuss the following amendments:

No. 120, in clause 46, page 17, line 4, at end insert—

‘if it can be shown that the nest has been constructed or used by such a bird within the preceding 3 years’.

No. 143, in clause 46, page 17, line 4, at end insert—

‘(2A)In that section, after subsection (1) insert—

“(1A)In subsection (1)(aa) “nest” means a structure constructed by a bird for its eggs and young.”.’.

No. 109, in clause 46, page 17, line 11, at end insert—

Owl, BarnTyto alba
Chough, Red-BilledPyrrhocorax pyrrhocorax
Harrier, HenCircus cyaneus
MerlinFalco columbarius
Falcon, PeregrineFalco peregrinus’.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

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.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

Or they lay them in somebody else’s nest, like cuckoos, as my hon. Friend says. I do not expect that the Minister is planning to extend the legislation to cuckoos—but we need to define what is meant.

I consider those three amendments to be quite important in addressing weaknesses in a proposal that I entirely support in principle.

The hon. Member for South-East Cornwall and his colleagues have tabled another amendment that would extend the schedule to a further five species. As I implied in my earlier comments, that is where I begin to have some concern. I do not wish to pre-empt their advocacy of those five species, although I know the source of the proposal. However, I am concerned that such an extension would cause serious problems. Some of those species are ground-nesting birds. Some of them do not use the same nest again; they may nest in the same vicinity but they do not use the same nest. We shall get into difficulties if we allow the list to be extended.

The three species included in the schedule are wonderful, tremendous birds. It is a thrill to see them at all, and we should delight in the fact that at least two of them are in our countryside—the white-tailed sea eagle is not there yet, but I hope that it will be—and they need to be protected. I am wary in case we extend the provisions too far. I think that I have made that point thoroughly.

The three amendments I have tabled are intended to get the legislation right. They fulfil the role for us that I described this morning—as legislators trying to get it right. The amendments are not designed to negate or reduce the impact of the legislation—as I suspect some of my critics might think—they are designed to get the legislation right. I hope that the Minister will feel amenable to their spirit, if not their words.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs

As the hon. Member for South-East Cambridgeshire said, amendment No. 109 would extend the schedule to cover five further birds. I am grateful to the RSPB, which helped us to draft the amendment.

The amendment’s purpose is clear: it would make the list of species in schedule ZA1 more relevant to the current situation in England and Wales. As the hon. Gentleman said, the current list includes some magnificent birds, but in relation to relevance and nesting, it does not have much to do with the clause. The species that would be added by our amendment   include important breeding populations in England that would significantly benefit from year-round protection.

Either the schedule will remain as it is, with limited real benefit and effect, or it will be extended to give it some real meaning for particular birds where there is already a significant population—although I accept the point made by the hon. Member for South-East Cambridgeshire, that this would create difficulties in some areas, particularly for some farmers and others engaged in agriculture.

As has been said, several species re-use traditional nests, and sometimes a very long history of occupancy has been established. Sometimes, of course, that is one of the reasons why they are more easily targeted by those who would seek to eradicate them. Some species add nest material throughout the year, and some use the nests as roost sites outside the breeding season. In contrast to the current legislation dealing with birds nest sites, existing legislation protects bat roost sites throughout the year, even when they are not in use. There is a slight discrepancy between that and this Bill.

There is increasing evidence that the nests and nest sites of some species are deliberately targeted by individuals who want to prevent successful breeding. Examples include nest sites regularly used by ground-nesting birds of prey such as merlin and hen harrier being burned in early spring just before the birds return. Trees containing osprey nests are deliberately chopped down, as has been said, and golden eagle nests are pulled apart. Peregrine eyries are blocked with a strategically placed stone or covered in netting to prevent a scrape or a ledge from being used. That is often done in the knowledge that no offence is committed while the bird is not present, but has the desired effect of preventing birds from breeding in that area. As things stand, it is not an offence to stop birds from breeding in an area.

The Government’s UK raptor working group report for 2000 recommended that consideration be given to modifying the legislation to protect certain species’ nests from destruction outside the breeding season. Such protective legislation is already in place in Scotland. I recognise that the Minister wishes to pursue the devolved nature of the legislation—perhaps there are significantly more birds in proposed new schedule ZA1 in Scotland than not. Nevertheless, it would be sensible to co-ordinate such legislation between Scotland, England and Wales, as birds fly between them.

We must recognise that there might be occasions on which a nest needs to be removed, for health and safety reasons or as part or quarrying or forestry operations. However, that should be subject to licences issued by the Department for Environment, Food and Rural Affairs or Natural England and follow procedures under section 16 of the Wildlife and Countryside Act 1981, preferably with a condition that alternative nesting sites be provided nearby.

Of course we support the clause, but we are trying to make it more relevant to England and Wales. I am quite certain that the Minister and his officials have considered long and hard just what the extent of   proposed new schedule ZA1 should be, but as drafted the provisions are not particularly relevant to England and Wales. Extending the provisions, as suggested by amendment No. 109, would provide additional protection for considerably more species, but could create difficulties for those who might damage nests and nesting sites accidentally.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I want to raise a difficultly that immediately occurs to me, apart from the suggestions that I made earlier. The first bird on the list in amendment No. 109 is the barn owl. I am sure that we would all want to see barn owls; indeed, we want to see them so much that in many parts of the country people put up boxes for them. Under the hon. Gentleman’s proposal, however, we would not be able to move such boxes. If I put up a barn owl box in a tree but then decided that I wanted to move it to a different tree, I could not do so without going through the huge bureaucracy of securing a licence. I am concerned that that is the sort of trap into which extending the list will lead us.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs

I accept that, inevitably, as we try to extend the legislation we come across more bureaucracy. I suppose that there could be a licence, but we are entering the realms of achieving the right balance. We suggest that the balance that the Minister has struck falls short of the protection that we should be considering. This is probably the only time that we shall consider such matters. We have an opportunity, and it would be wrong not to raise the chance of giving wider protection, notwithstanding the fact that there could be certain difficulties, which I fully recognise. I will be pleased to hear what the Minister has to say, because I am sure that the issue has been well discussed in the Department in arriving at the list.

Photo of Angela Smith Angela Smith Labour, Sheffield, Hillsborough 5:15 pm, 28th June 2005

I have much sympathy with amendment No. 109. As the hon. Member for South-East Cambridgeshire said, there is just one golden eagle nest in England and none in Wales. As has been pointed out, the white-tailed eagle does not breed at all in England. However, the species listed in the amendment are part of the English landscape, albeit in reduced numbers.

There is an old saying that we borrow the world from our children. That is never more true than in relation to wildlife. At the moment, if people want to see a peregrine falcon in my part of the world they have to travel to the Old Moor Wetland Centre in Wath-Upon-Dearne to observe the species in full flight. That is a sad state of affairs and underlines why we need to take the amendment seriously.

The hen harrier was a common bird of prey in the 19th century but was almost entirely eradicated in the same century for the purposes of grouse shooting. Just a few pairs survived in the Orkney islands. The species has managed to breed more successfully in recent years, but recolonisation is slow and still incomplete and that bird is absent from vast swathes of moorland in northern Britain. There are 520 pairs of hen harriers in the UK at the moment, but there is capacity for   1,600 pairs. That is the the room for expansion without endangering the grouse or any other species that may be preyed on by the hen harrier. There is massive room for recolonisation by the hen harrier. More than anything else, that underlines the importance of the amendment.

I understand concerns about extending the legislation because expanding protection for the nest site to the nest area is a serious matter. Although it is difficult to support the amendment, because of the extra consideration that would need to be given to extending the legislation to cover the nest site, I plead with the Minister to give the amendment serious consideration before we discuss the Bill on Report.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

Hen harriers are wonderful birds and we want to see them. However, I am concerned that the implication of the hon. Lady’s remarks—perhaps she did not mean it, but it is certainly a perception that is shared elsewhere—is that if it were not for grouse moors or keepers, hen harriers would be fine.

The hon. Lady is right about the figures. I know their source: Dick Potts’s study came up with a figure for the potential population of harriers. However, huge swathes of our landscape should, in theory, be supporting hen harriers, but there are none there even though there is not a keeper or a shooting interest for miles. We should not grasp at simplistic solutions to the real problem of increasing harrier hen numbers.

Photo of Angela Smith Angela Smith Labour, Sheffield, Hillsborough

I take the hon. Gentleman’s point, but the damage was done in the 19th century. My comments were not meant to reflect on 20th or 21st century practices.

I have some sympathy with the new clause, which would introduce the concept of recklessness. There are signs everywhere on National Trust land in the Peak district telling people clearly not to let dogs off leads in areas known for nesting birds and during the lambing season, particularly in spring. I see no reason why serious consideration should not be given to including the amendment’s provisions in legislation now or at a later date.

The hon. Gentleman referred to other difficulties with introducing protection for ground-nesting birds, in particular nests or nesting sites that have been intentionally damaged. That should not be an insurmountable problem. In an area to the south-east of Sheffield, we have cliffs, and skylarks have been nesting there for a considerable time. That is recognised by local people and by the city council. As a result, the grass is not mown when the birds are nesting. It is not beyond our capabilities to resolve such dilemmas. It is much to the annoyance of some of the locals that the grass is not mown then, but that is sometimes the price that has to be paid for conservation.

A question was asked about the barn owl: if someone puts a box in a tree, does it mean that he will never be able to remove it? That serious point needs to be considered, but those who are keen to attract wildlife into their gardens end up on that treadmill   anyway. If someone puts a feeder tube in the garden, he can never stop filling it as it will have started attracting numerous species. I live in the inner city and about 15 species of birds have been attracted to my garden. They form the habit of depending on such feeding. In that sense, most people who are keen to introduce wildlife into their gardens would never want to remove such devices, as they were sufficiently concerned about wildlife to have put that aid to conservation in place.

The reasons for opposing amendments Nos. 143, 120 and 119 have been made, but I urge the Minister to think again about amendment No. 109.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

The amendments deal with the protection of nests for those few birds that reuse their nest year after year. It is a limited number of species, as we have heard. We all agree that they are special birds, which is why we seek that extra protection to aid reintroduction programmes and to ensure the survival of those few that we have. I shall speak to each amendment separately. First, however, I want to respond to questions, particularly those of the hon. Member for South-East Cambridgeshire.

The hon. Gentleman understandably and rightly said that the provision was for a limited number of species, one of which is not currently to be found in England, and in essence asked whether the provision was really necessary as a conservation measure. The three species listed in proposed new schedule ZA1 are the subject of continuing reintroduction programmes, and it is increasingly likely that more breeding pairs will become resident in England and Wales. Although the white-tailed eagle does not yet occur in England or Wales, it is expected to increase its range in the future. That is why we included it. I am sure we all hope that that programme is successful.

The hon. Gentleman also asked whether species could be added to the schedule. I shall turn to that subject when I discuss amendment No. 109. To clarify matters, the proposed new schedule can be varied by secondary legislation at any time, but any proposal to do so would be subject to full public consultation and risk assessment. The Committee should understand that the provisions of clause 46 are very much to do with birds that reuse their nests year after year.

The hon. Gentleman then asked whether the provision for the detection of nests would be applied to ground-nesting birds that returned to a nesting area but not to a specific nest. The provision has been worded carefully to ensure that it applies only to species that reuse their nests year after year. Destruction of their nests can endanger the birds’ breeding success. It is not envisaged that the measure will apply to species that return to the same nesting area and build new nests, as the destruction of their old nest would not deter them from their breeding activity. I will return to that because it is an important issue that is addressed in amendment No. 109, tabled by the hon. Member for South-East Cornwall, which received the support of my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith).

Amendment No. 119 would add a requirement of intent to the offence of taking, damaging or destroying a nest protected on a year-round basis. It is to be inserted into the 1981 Act. The amendment to the 1981 Act introduced by clause 46 sits in an existing section that already requires intent for an offence to be committed. It is therefore unnecessary specifically to include the word “intentionally” in respect of the new offence of taking, damaging or destroying the nest of a species whose nests are protected on a year-round basis, because it is already included and would mean unnecessary duplication.

I understand that the intention behind amendment No. 120 is to protect the nests of the species in proposed new schedule ZA1 while they are being used on a yearly basis and should they be abandoned for a further three years. The species listed in the schedule are so vulnerable that their nests should be protected during the period after the birds leave the nest until their return during the next breeding season. As it stands, the Bill protects their nests in perpetuity even if they fail to return to their nests the following year.

We regard that as essential because birds can return after an absence of some years. The period of absence can vary between species. I asked my officials to let me know the lifespan of the three species, because I thought that that would be helpful. Certainly, it was when I was thinking about the issue. The RSPB told us that the lifespan of the golden eagle is 32 years. According to the Forestry Commission, the lifespan of the osprey is 20 to 25 years. It gave us a similar figure for the white-tailed eagle.

We also believe that successive generations may return to reuse nests, so it is difficult for us to know when we can safely say that a nest will no longer be reused by that species. Given that we have a licensing process, I ask that we allow the nest to remain in perpetuity so that we can extend the protection to those rare birds in England and Wales. Not a great number of nests will be protected in that way. As I said, if any nests pose a danger to public health and safety—if, for example, they are sited in an unstable tree or building, are an impediment to lawful activities such as crop production or cause serious damage to timber—there is a process of applying for a licence to have that small number of nests removed or moved. On balance, the extra protection given to those magnificent species will be well worth the small additional constraint on human activities.

Amendment No. 143 introduces the definition of “nest” to the protection afforded to the three species. Concerns has been expressed that the provision to protect nests on a year-round basis could have serious implications for land managers if “nest” is interpreted widely to include nesting sites. I said that I do not intend to interpret it in that way, especially if we were to include ground-nesting birds, because I have sympathy with that concern. We have carefully worded the clause so that it applies to species that return to a specific nest year after year rather than to a nesting area in which they build a new nest each year.   I give you, Mrs. Anderson, and the Committee an assurance that species will not be added to the schedule unless they reuse specific nests.

There may also be unintended consequences in attempting to define the word nest. For example, to encourage rare birds to breed, conservation workers sometimes construct a framework that birds make use of when building their nest. Most famously, in the constituency of my hon. Friend the Member for Workington (Tony Cunningham), the Forestry Commission constructed a framework for ospreys. That has been used successfully. I am told by my hon. Friend that there are about 100,000 visitors to the site every year to view the ospreys. I am told by the Forestry Commission that that generates £2 million to the local economy. That is a startling figure. I recall the hon. Member for Hexham (Mr. Atkinson) telling us that the grouse moors were worth £3 million to his local economy, and to think that just those two birds in the forest in my hon. Friend’s constituency could generate £2 million is remarkable.

The proposed definition would therefore not necessarily protect such a structure, as it could be argued that it was not constructed by a bird. In addition, birds may build a nest but not produce any eggs, and it is not certain that the proposed definition would cover such a nest. I accept that in some ways I am being pedantic about the wording, and that the amendments were not tabled in order to raise such problems, but the natural, common use of the term “nest” is far preferable, as it avoids creating the uncertainty that would be created, however cleverly the definition it is drafted. The bird species listed in the schedule introduced by clause 46 are birds that return to the same nests year after year and use them for breeding. I hope that the hon. Member for South-East Cambridgeshire accepts that we have found a sensible way of addressing the matter.

The additional species proposed in amendment No. 109 may return to the same general nesting area each year, but they do not reuse the same nests. I fully accept that they are valuable birds. If my hon. Friend the Member for Sheffield, Hillsborough wants to see peregrine falcons, I recommend that she visits my constituency, where there are 12 breeding pairs on the Dorset coast, largely thanks to the Ministry of Defence’s excellent work on furthering the biodiversity on the Lulworth ranges. There is a little controversy in my constituency over the local pigeon races but one can see the peregrine falcons. If the falcons’ nests were removed or destroyed, it would not deter them from nesting in the same area the following year. The appropriate mechanism for protecting such sites is the SSSI procedure; if Natural England is of the opinion that an area which is important for rare birds is of special interest, it can designate it as a site of special scientific interest. That will bring with it all the legislative protection afforded to such sites, which the Government significantly improved in the 2000 legislation.

There has been widespread support from respondents to the consultation on the review of the Wildlife and Countryside Act 1981 for the listing of the three species in the schedule. However, a number of the respondents drawn from landowning and land management interests expressed concern about further species being added without further consultation. We have made it clear—I have made it clear today—that we would consult further if other species were to be added to the schedule. I hope that on the basis of what I have said the amendment will be withdrawn.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs 5:30 pm, 28th June 2005

I am grateful to the Minister for that response. I knew that he and his team would have considered the matter very carefully. I think that he understands the concern that has been expressed in Committee. We are all on the same side, and I hope that he might, even at this stage, begin to examine ways in which certain protection could be given without some of the possible ramifications and unintended consequences. We do not get such opportunities often, and there is a good deal of feeling that we need to do whatever we can to try, within the balance of things generally, to provide that additional protection, notwithstanding the difficulty of drafting and implementing it. I am sure that the Minister will reflect before Report on whether there are means by which some protection can be given to those particular species.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I let the hon. Gentleman speak first because the lead amendment is in my name. I am genuinely grateful to the Minister because he has sought to address the concerns that I expressed and the points that I raised. I had missed—I am glad that he corrected me—the fact that “intentionally” was already in the legislation. Clearly, therefore, my lead amendment is not necessary. That that may not entirely satisfy the hon. Member for Sheffield, Hillsborough, who opposed my amendment, but never mind. I am glad of that clarification from the Minister. I am also grateful for his affirmation about adding birds only after consultation and only those that re-use a specific nest. That is sensible, and all legislation is about striking a balance. He is right, and I appreciate the assurances that he has given.

On the structure and definition of nests, if I had stopped for a moment I would have remembered that there are artificial osprey nests and perhaps even other nests for those species. I would have realised that in his pedantry the Minister was correct and I was unwittingly excluding them. I did not do that intentionally, but he is right. In some ways, I still believe that there should be a definition, even if my choice of words was not right, but I will go along with what he has said.

The Minister referred to peregrine falcons in answer to the amendment tabled by the hon. Member for South-East Cornwall, and the proposal about using sites of special scientific interest to protect general nesting areas is sensible. I do not know whether he will impose one somewhere in London—I read somewhere   recently that the first peregrines have nested on a building in London—or how we would go about that. The question of whether that should done through listing in a schedule or through a SSSI would be a challenge for the Minister. However, if the hon. Member for Sheffield, Hillsborough cannot see the birds in Sheffield, she can see them in London.

I must confess that I have my reservations about the Minister’s comments on my amendment to introduce a time limit. He used the phrase “in perpetuity”. As I said, I am not wedded to the idea of three years; I just think that it is bad law to provide for something for ever and a day. I accept that there are licensing arrangements, and while there is only a tiny number of the birds, it is not an issue. However, we must be conscious of what might become an issue, considering both the species in question and any others that might be added.

I would have thought that there should be some time limit. As I said earlier, I discussed that with a senior official in the RSPB, who was happy with the amendment but thought that five years would be better, so perhaps the Minister could reconsider. Although he is right that most of the species live to a great age, most people would agree that if an individual bird or pair has not returned in a few years, it is highly unlikely to do so again, because it has probably died, even if that is prematurely. I therefore believe that a time limit should apply.

Overall, the Minister has responded helpfully, and I am grateful to him. Bearing in mind the fact that we have still to debate the issue that the hon. Member for Sheffield, Hillsborough touched on, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

With this it will be convenient to discuss the following:

New clause 7—Protection of wild birds, their nests and eggs—

‘(1)Amend the Wildlife and Countryside Act 1981 (c. 69) as follows.

(2)In section 1 (protection of wild birds, their nests and eggs), in subsection (1), after “intentionally” insert “or recklessly”.

(3)In section 3 (areas of special protection), in subsection (1)(a), after “intentionally”, insert “or recklessly”.’ .

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

The clause provides for a new offence under the Wildlife and Countryside Act 1981 of taking, damaging or destroying at any time during the year the nests of certain wild birds listed in a new schedule. As we have just discussed, the new schedule includes golden eagles, white-tailed eagles and osprey, all of which are listed in annex 1 of the birds directive and are subject to reintroduction or re-establishment programmes. Section 1(1) of the 1981 Act protects nests only when they are being built or in use, but certain endangered bird species return to their nests year after year, and the provision is aimed at supporting their long-term breeding success.

The majority of offences in part I of the 1981 Act require the person committing the offence to act intentionally. However, the suggestion that certain offences should be extended to include instances when they are committed recklessly has been around for many years. The hon. Member for South-East Cambridgeshire made an interesting point about recklessness. The Countryside and Rights of Way Act 2000 introduced additional offences by applying the term “recklessly” to the offences of disturbing schedule 1 birds and schedule 5 animals. More recently, the Nature Conservation (Scotland) Act 2004 applied the term to several offences across part 1 of the 1981 Act as it applies to Scotland.

The hon. Gentleman’s new clause would protect all birds against the offences of reckless killing, taking and injuring; protect all nests from reckless damage and destruction during the breeding season; and prevent all eggs from being recklessly taken or destroyed. It would further extend offences committed in respect of specified birds in areas of special protection.

It is important that in providing protection for vulnerable wildlife we do not place a disproportionate burden on legitimate activities such as farming, timber production, fishing and defence. Such activities can take advantage of the defence available if the action was the incidental result of a lawful operation and could not have reasonably been avoided. To introduce a new offence of recklessness would inevitably have repercussions on that defence. Such repercussions would need to be considered carefully, not least by me if I were to choose to accept the new clause, especially with regard to clause 53, which applies part 1 to the Crown. There would have to be a demonstrable conservation benefit before we followed such a route.

With that in mind, the recent consultation on part 1 of the 1981 Act recommended that offences of recklessness should be limited to providing increased protection for those species that are most vulnerable—birds listed on schedule 1, animals listed on schedule 5 and plants listed on schedule 8. That recommendation was supported by the vast majority of those who responded on the issue, although some concerns were raised regarding proportionality.

All of the above leads me, in a fit of generosity, to having a great deal of sympathy with the intention behind the new clause, but not with the new clause itself. As it stands, the protection that it proposes for birds would go further than the Government and the respondents to the public consultation consider appropriate. It also fails to offer any equivalent protection to vulnerable species of animals and plants.

In conclusion, although the new clause is not completely acceptable, it raises an important issue, which I undertake further to consider.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister for introducing clause 46 and for responding in advance to my new clause. He will be aware that the new clause was tabled at the behest of the RSPB, as were some of the other amendments that we have debated today. No doubt it will take note of what he has said.

In some ways, the Minister made the case for the new clause by referring to the 1981 Act and the changes introduced by the Countryside and Rights of Way Act 2000. The fact is that some of the provisions in the 2000 Act are inconsistent in their application—they do not necessarily apply to all the more serious offences. The word “reckless” is variable in value, and, as the Minister said, he has already carried out a consultation. I hesitate to bring in Scottish issues, because one of the benefits of devolution, if we believe in it, is that we do not all have to do the same thing. If we all had to have the same legislation, one would have to question why we had devolution. Nevertheless, the principle stands.

The RSPB’s argument is that the Bill needs to go a little further, which is why the new clause is drafted as it is. The RSPB is concerned about people who use the argument that they did not intend to kill something when it is clear that they were not giving the issue sufficient thought or were reckless. It gives an example of a fish farmer who shot a grey heron but claimed that he thought that it was a wood pigeon—Specsavers could help him, I am sure—and other examples.

Clearly, that is an issue, but I understand the Minister’s concern at extending the provision too widely. I am grateful that he is sympathetic to the overall objective and I assume from that and from his comments about the result of the consultation that he will table appropriate amendments at a later stage in the passage of the Bill. The measure would need to apply to animals; the fact that the new clause did not was an oversight by me and the RSPB. I hope that the Minister will table amendments on Report. I do not know when we will reach Report. Quite often, the Government do not table amendments until Bills go to the other place. There is no question of my being proprietorial, but when an issue has been raised in this House, it is nice for the Government to resolve it in this House, rather than waiting until the Bill goes to the other place.

I am grateful for the Minister’s general comments. I did not move the new clause, so I cannot withdraw it, but I am happy to support the clause generally.

Question put and agreed to.

Clause 46 ordered to stand part of the Bill.

Clauses 47 and 48 ordered to stand part of the Bill.