Natural Environment and Rural Communities Bill

I will deal first with the last points of the noble Baroness, Lady Byford. I can work only on the basis of somebody who is not personally able to establish whether it is true that bracken causes cancer or has damaging properties in relation to people or animals. I would be grateful if any correspondence could be directed to me so that I can get the department to look at it; I wrote to those who took part in the debate at Starred Questions on that subject. I would very happily look at any further evidence. These two amendments relate to Clause 46, which seeks to extend the protection afforded to nests of birds which reuse their nests. Amendment No. 291 seeks to add four species to the new Schedule ZA1, which lists those birds whose nests may not be taken, damaged or destroyed at any time during the year. Amendment No. 290 seeks to limit this protection to a maximum of five years. If I can take the second amendment first, the additional species proposed for inclusion are the red-billed chough, peregrine falcon, barn owl, and swallow. All of these species are amber listed, according to the list of birds of conservation concern produced by statutory conservation agencies and the RSPB. I too would like to place on the record thanks for the information provided by the RSPB and others with a close interest. Amber listing means that the birds have unfavourable conservation status within Europe. However, there are signs that their populations within the UK are slowly increasing. Three of the species were proposed for addition to the schedule during Commons Committee and Report stages, with a further two that have now been dropped, I presume because they did not meet the basic criteria; that is, they do not reuse the same nest site each year. The new amendment proposes the addition of the swallow species, to which the noble Baroness, Lady Miller, referred, among others. While it is true that the chough, peregrine falcon and barn owl return to the same nest, and will use it if available, the fact of the matter is that if it has been damaged or destroyed, they will build a new nest nearby just as readily. As colleagues explained during the Commons stages, these are important species and deserve to be protected, which is why it is an offence to disturb them during the breeding season. However, we do not feel that it appropriate to protect their nests all year round. That would lead to thousands of sites needing to be monitored, which is unrealistic. The swallow, on the other hand—as the noble Baroness pointed out—is slightly different. It returns to the same site each year but these sites may become less suitable if the old nests are not cleared. Old nests may be reused, if they can be rebuilt and used again; however, most are built anew each year. If the old nests cannot be cleared to make room for the new, it will become increasingly difficult for the birds to construct new nests, particularly when faced with an adjoining property where the people living there are not so happy to have the swallows as external tenants. Clause 46 seeks to protect those very rare species that reuse their nests, and whose populations would be severely threatened if even one of the nests were destroyed outside the breeding season. That is why their nests are being readily monitored by conservation organisations. The same cannot be said of the species proposed in this amendment for addition. Amendment No. 290 is identical to an amendment tabled in the Commons, which was withdrawn. We have no new arguments against it. We still believe it is misguided and will serve no useful purpose. As the 1981 Act stands, nests are protected only while they are in use or are being built. That means that as soon as the young chicks fledge and fly off, anyone can destroy the nest, for any reason or purpose. When the birds return the following year, the nest has gone, and their breeding success may be put at risk. Amendment No. 290 seeks to limit the protection to a period of five years from when the nest was reconstructed or last used. Some birds—for example, eagles—can use several nests and may return to a nest even though it looks as if it has been abandoned for some time.It is important to remember that it is possible to apply for a licence under Section 16 of the 1981 Act, if there are good reasons for removing a nest which appears to be abandoned. Each application can thus be considered on its merits, balancing the likelihood of the birds’ return and the impact of removing the nest with the benefits of doing so. It may prove possible to obtain a licence even before five years have passed. I do not consider the necessity of applying for a licence in such cases overly bureaucratic, because the listed birds are rare within England and Wales. Their rarity, their ecological importance, and their habit of reusing nests, are precisely why they are listed on the schedule. There is also a practical difficulty in accepting the amendment—or, indeed, any amendment that seeks to restrict the protection to a particular period. How is it possible for an enforcement authority to know for how long a nest has been abandoned? How do we know when to start counting—not all nests of birds listed by the new offence are observed all year round in order to obtain that information? The Nature Conservation (Scotland) Act 2004 has avoided that problem by using the term, ““habitually used””, but what may be habit for one species may be different for another. As I said, eagles may appear to have abandoned a nest for several years. The decision must rest on the balance between the purpose—for example, public health—and the likely impact on the breeding success of the protected species. The abandonment or otherwise of the nest is an important but not the only factor. The noble Earl asked whether only birds listed in Schedule 1 to the Wildlife and Countryside Act 1981 can be listed in Schedule ZA1. Any species of bird that reuses its nest year after year can be so listed. The provision has been worded to apply to specific species that use their nests year after year and it is not envisaged that it would apply to species that return to a specific area but build new nests each year. I hope that the noble Earl is satisfied by that distinction. There are licensing grounds for public health and safety to remove a nest. The licensing provisions in Section 16 will apply to that new offence, as they apply to other offences in Section 1. Nests protected under those provisions will be protected in perpetuity. However, the licensing provisions of Section 16 will apply, so that licences can be sought for listed purposes for nests, once abandoned. Where Natural England or the Countryside Council for Wales is of the opinion that an area that is important for rare birds is of special interest, it will notify the area as a SSSI, bringing with it all the protection that follows. As long as normal operation on the land surrounding a nest does not cause damage or destruction to a nest, it will not constitute an offence. However, an offence could arise from the disturbance of birds. If it can be proved that bracken is killing cattle and sheep, the owners of the animals can seek a licence to remove it. I have given a long, detailed answer because I know that many Members of the Committee have a detailed interest in the matter. I hope that my range of reassurances will satisfy them and that the noble Earl will withdraw the amendment.