BRITISH BIRDS NUMBER 12, VOL. XLVII, DECEMBER, 1954.

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1 BRITISH BIRDS NUMBER 12, VOL. XLVII, DECEMBER, THE NEW PROTECTION OF BIRDS ACT. LONG after those who originally conceived it have died of old age or frustration, the Protection of Birds Act, 1954, came into force on December 1st, bringing to an end well over thirty years of miserable procrastination and repealing the whole of no less than fifteen earlier Acts together with parts of eleven others. Few subjects have been exposed to so unfortunate a mixture of ill-conceived, incoherent and unenforceable legislation, and to emerge now with a single reasonably clear and up-to-date law governing bird protection seems an advance of almost Utopian character, despite whatever deficiencies it may prove to contain. This belated progress is due mainly to the insistence of Viscount Templewood, in the House of Lords debate of December, 1952, on the production of a bill without further delay, and to the skill and judgment, tact and charm with which Lady Tweedsmuir steered the measure through the Commons. We propose here first to analyse the provisions of the Act, then to discuss some points of special interest for ornithology, and incidentally to touch briefly on prospects for the future. The pattern of the Act is agreeably simple. Basically it gives complete legal protection throughout Great Britain to all wild birds and their nests and eggs. There are, however, some exceptions. The Second Schedule allows certain species to be killed or deprived of their eggs as pests by owners or occupiers of land and by other "authorised persons". The Third Schedule and Part II of the First Schedule permit certain other birds to be killed or taken outside the Close Season. Eggs of ducks, geese, and swans may also be taken up for artificial hatching, and the Home Secretary proposes to make an order intended to enable birds-nesting (confined to certain common species) to continue without involving an offence against the law. These exceptions are counterbalanced by the enactment of specially heavy penalties for offences in respect of over fifty of the rarest species and their eggs at all times, and an additional ten species in the Close Season. Similar penalties are also provided covering almost all species in "bird sanctuaries", either already in existence or later to be created bv order of the Secretary of State. The special position of the Pheasant, Partridge, Ptarmigan and Red and Black Grouse is dealt with by the expedient, more acceptable to lawyers than to ornithologists, of enacting that these are not "wild birds" except in relation to licensing, enforcement and the prohibition of certain methods of killing or taking. Having dealt on these lines with the problems of "which birds" and "which areas", the Act has also to define at what times and

2 410 BRITISH BIRDS. [VOL. XLVII. by which methods legal killing or taking may be done. The general Close Season is fixed from February ist to August 31st but is shortened in the case of Snipe to end on August nth and is extended in the case of Capercaillie and (except in Scotland) Woodcock to end on September 30th, and is delayed in the case of wild duck and wild geese in or over any area below high water mark of ordinary spring tides to start on February 21st. An important clause prohibits generally the use of any net, trap, gin, snare, hook and line, poisoned or stupefying bait, birdlime, and live decoy or artificial light and any shot-gun with a muzzle diameter over if inches, and also (under special penalty) the use in immediate pursuit of a bird of any aircraft or of any mechanically-propelled boat or vehicle. There is provision for making Orders restricting or prohibiting in an area the use of any form of decoy for wild geese. Use of a trap or net for ringing, or for taking birds on the Second Schedule is still legal, and so is action to put maimed birds out of their misery or to take and nurse them back to health, or in case of necessity to protect fisheries, crops or property against any species not on the First Schedule. Experience has shown that uncontrolled sale, importation or possession of protected species can undermine any law and the Act accordingly makes it an offence to sell or to possess with a view to sale "an egg (including a blown egg) of a wild bird of any species, if any bird of that species has nested in the British Isles in a wild state" or any dead wild bird, skin or plumage unless either legally killed or lawfully imported. The same applies to a long list of live wild birds likely to be kept in captivity unless they are close-ringed and bred in captivity. The importation of live or dead Quail, dead Lapwings and a number of dead birds killed as game is prohibited, and the Secretary of State is given wide powers by order to prohibit importation of live or dead birds or eggs of any species. Cramped confinement of cage-birds and liberation of captive birds for shooting are prohibited. There are also provisions for adding species to or removing them from the various Schedules, for various actions which would otherwise be offences to be permissible for scientific, educational or other defined purposes if duly licensed by an appropriate Minister or by the Nature Conservancy, and for the establishment of two Advisory Committees (one for England and Wales, and one for Scotland) and other provisions for consultation. Rights are given to constables to stop, search and in certain cases arrest any person found committing an offence, and to seize and detain specimens or weapons. The normal maximum penalty is a fine of ^5, but this may be multiplied by the number of birds, nests, eggs or skins covered by a conviction, and in addition offences carrying a special penalty are punishable by fine of up to ^25 or by imprisonment of up to one month for a first or up to three months for a subsequent offence, or both.

3 VOL. XLVH] NEW PROTECTION OF BIRDS ACT. 411 Without attempting to cover all the finer points or to give a complete legal paraphrase, that is in substance what the Act provides. It will be seen that the principle of listing birds protected in each administrative county has at last been replaced by the principle that all are protected everywhere unless otherwise provided. This removes two of the crippling handicaps of previous legislation, first by placing the onus effectively upon anyone interfering with wild birds to make sure first that he is covered by one of the fairly few and understandable exceptions to the general rule that they are all protected everywhere, and secondly by cutting out all the nonsensical county and county borough variations and ensuring that with few exceptions what is illegal in one area is also illegal in the next. The drastic restriction of the right to trade in live or dead wild birds, and the complete prohibition on trading in eggs should make systematic violation of the law much less tempting, while the scale of the penalties is at last fully commensurate with any gain that might be expected from an undetected offence. The reduced uncertainty surrounding the law and the greatly enhanced authority which it must receive from its full consideration and overwhelming backing from both Houses of Parliament should also much improve the prospects of adequate enforcement. Nevertheless it cannot be expected that constables, who alone are given authority against offenders, will often be on the spot where offences are committed, and in the absence of more adequate provision for official enforcement and for education much will depend on voluntary effort and determination to make the Act a success, and to see that the unhappy tradition of ignoring the law in this field is promptly and completely ended. In some counties, such as Cheshire, Special Constables have for some years been appointed to enforce bird protection laws. This practice might usefully be extended where the ordinary police cannot reasonably be expected to cope with the burden unaided. Ornithologists will naturally turn with most interest to the Schedules of named species. On these there will naturally be differing views, but with two exceptions the lists seem reasonably defensible. These exceptions are the hasty and ill-considered inclusion of the Brambling in Part II of the First Schedule with the ludicrous effect of creating an open season for shooting Bramblings between August 31st and February 1st and the inclusion in the Third Schedule of the Canada Goose, which is still feral rather than genuinely wild and could rapidly be shot out if full advantage is taken of this permission, although owners of straying flocks might have some other legal redress. On the other hand the First Schedule sensibly includes all rare or infrequent breeding birds of prey, and several quasi game-birds now reduced in fortune such as the Quail, Corncrake, Bustard and Ruff and Reeve. (In certain cases there is some ambiguity, such as for instance whether Little Bustard' would be covered by "Bustard".) The

4 412 BRITISH BIRDS. [VOL. XLVII. omission of Savi's Warbler and Red-crested Pochard seems inconsistent when Spoonbill and Black Tern, Roller and Bee-eater are included. The "pest list" in the Second Schedule shows refreshing freedom from prejudice, and there can be no scientific objection to the inclusion in it of the Carrion and Hooded Crows, Great and Lesser Black-backed Gulls, Magpie, House Sparrow, Stock Dove and Woodpigeon. More arguable cases are those of the Cormorant, domestic pigeon gone feral, Herring Gull, Jackdaw, Jay, Rook, Sparrow Hawk and Starling, but none of these species is likely to take much harm from its inclusion, and in some conditions each of them is capable of being a pest. More serious objection may be made to the inclusion here of the Goosander and Red-breasted Merganser (both in Scotland only), the Shag and (also in Scotland only) the Rock Dove. All these are comparatively scarce and interesting species whose net injurious influence, if any, must be slight and it is not creditable to Scotland or to fishing interests that they should have been thrust on to the "black list" on largely irrational pressure. All, however, are fortunately able to' look after themselves. Two species which do not appear on any Schedule are the Brent and Barnacle Geese, which therefore enjoy normal protection at all seasons. It is unfortunate that the difficult task of assessing the facts and the sound conclusions to be drawn regarding these cosmopolitan wanderers should have been so gratuitously aggravated and exacerbated by parochial and partisan controversy. We may hope that, now so much steam has been blown off, the important task of discovering what is really happening to these two species and for how long they will need full protection can be resumed in a more reasonable atmosphere. Scientifically it is an essential feature of sound bird protection legislation that it should include provision for adjustments from time to time to changed conditions, and this the new Act does, although it will need considerable education and additional information before such adjustments can become an accepted and smoothly-working element in the situation. Fortunately some time is available for the purpose, since whatever may be thought of the wisdom of particular Parliamentary decisions which have rightly or wrongly been incorporated in the Act, it would clearly be inappropriate for any of the questions which have been hammered out in the debates to be reopened from any quarter until some experience has been obtained of the working of the new law, and further evidence has been collected on the various contentious points, which may enable at least some of the divergences of opinion to be bridged. This applies, for example, to the peculiar late amendment which permits the eggs of Lapwings to be taken or destroyed up to April 15th, but expressly empowers the Secretary of State in effect to repeal this provision by order at any time. The arguments which were produced will have moved few serious ornithologists to regard this as anything other than legislation for

5 VOL. XLVII] NEW PROTECTION OF BIRDS ACT. 413 the protection of old gentlemen who enjoy eating plovers' eggs, but unless we are so unfortunate as to have an exceptionally unfavourable sequence of weather in the coming breeding-seasons it is likely to prove more ludicrous than disastrous. One of the most unfortunate aspects of the concessions which were made during the passage of this measure is that several of them run so flatly counter to the Paris International Convention for the Protection of Birds which was signed ad referendum on October 18th, 1950, by the United Kingdom Government representative along with those of other countries several of which have since ratified. Consequently the United Kingdom is now unable to ratify and is therefore placed in a permanent embarrassment in relation to the other participating countries. Since we are wellknown for our readiness to tell other countries how they ought to behave in everything affecting animal welfare and since our example matters so much in some of the countries which are addicted to destroying our birds on migration the Act can at best be said to represent a lost opportunity internationally, even though a number of its provisions represent a satisfactory response to the requests of other countries sharing parts of the same bird population with us. At the time of writing, the composition of the two new Advisory Committees had not yet been announced; all ornithologists will look to them for a lead in making the new start and in creating the new constructive and co-operative atmosphere which is so badly needed.