Mr Paddy Tipping (Sherwood, Labour)

Surprisingly, there has been some agreement among the parties during the stand part debate. The hon. Member for North Wiltshire told us that the clause is the cornerstone of the Bill. Committee members recognise that the Bill disappears without clause 8. As a result, we have spent a great deal of time considering it. I was interested in the hon. Gentleman's point that he supports in principle the notion of a spectrum of cruelty and utility, but not in the form outlined in the Bill.

During the debate, three amendments have been passed: one on birds, the amendment of my hon. Friend the Member for Southampton, Test (Dr. Whitehead) on pest control, and that of my hon. Friend the Member for Wolverhampton, South-West, which was agreed earlier this afternoon. The latter switches the argument around and will change the burden of proof. As a result, we have an amended clause 8 that is slightly different from the one that was originally put before us.

Mr James Gray (North Wiltshire, Conservative)

The hon. Gentleman enables me to put right something that I inadvertently missed during the debate on the amendment of the hon. Member for Wolverhampton, South-West. It has been pointed out to me that I should have spoken against the amendment because it toughens up the utility test. I did not spot that or speak against it; nevertheless, we are opposed to it.

Mr Paddy Tipping (Sherwood, Labour)

The hon. Gentleman helpfully leads me on, because I also am of the opinion that the amendment toughens up the test and makes a case harder to prove. I was conscious that the hon. Member for Mid-Worcestershire said—I believe that I heard him correctly—that his impression of the effect of clause 8 was that foxhunting as we know it would, by and large, disappear.

The Committee must discuss what clause 8 actually means, because one of the criticisms of the Bill and this clause is that, in a sense, Parliament is sub-contracting the decisions. We are asking a body that is yet to be set up and a registrar who is yet to be appointed to make decisions that Parliament has voted on many times over many years. For my sake and for the sake of the Committee, the House and interest groups, we need clarity about what the clause actually means and what will be left to the registrar to decide.

I am with the hon. Member for North Wiltshire. My reading of the clause is that it will mean an end to local foxhunting—the sport of foxhunting as we know

it. What advice has my right hon. Friend the Minister received? He has worked diligently and hard on the Bill and it is a good, subtle and sophisticated Bill, but what does it mean? We must have that discussion, as my hon. Friend the Member for West Ham said. We need certainty.

My position is clear: I have always voted against the sport of foxhunting. However, I want to know what we are voting for. If I am not clear about that now in Committee I want an opportunity to clarify the matter when the Bill returns to the House on Report. The worst thing that we could do as a Parliament would be to let legislation go from our House to the other place without a clear understanding of what we have shaped and voted for.

Mr Edward Garnier (Harborough, Conservative)

The hon. Member for West Ham enlivened our discussion on whether clause 8 should stand part by unpicking the real agenda. I do not blame him for doing so and I am delighted that he did. I suspect that in some senses he and I are rather like the alliance between Enoch Powell and Michael Foot 25 years ago when the House was discussing reform of the House of Lords. That is a little unfair on him, because he does not look at all like Enoch Powell, and I do not suppose that I look like Michael Foot. I daresay that he and I have equally opposed views on reform of the House of Lords and we would have done so then, and that we will on 4 February when the Bill is debated in the House and moved towards a vote.

Mr Tony Banks (West Ham, Labour)

Does the hon. and learned Gentleman want to go there?

Mr Edward Garnier (Harborough, Conservative)

I will go anywhere—for God's sake, get me out of here. I assure the hon. Gentleman that, having listened to these debates since 1992, retirement to the House of Lords would be sweet relief. For the moment, I have to do my duty here in Committee Room 14.

The hon. Gentleman implied and the hon. Member for Sherwood (Paddy Tipping) said expressly that Report stage will be more interesting because the Government business managers will not be able to control the way in which matters are voted on as they are able to do with a smallish gathering such as this. I look forward to the debate on the Floor of the House, where all sorts of Members, who may or may not have listened to the arguments, will vote. I suspect that those who do not like hunting—which I believe the record will show is 100 per cent. of Labour Members—will be pleased to see a total ban Bill coming into law. Indeed, the hon. Member for Worcester (Mr. Foster) made his name trying to introduce a Bill to that purpose.

The hon. Member for West Ham touched on the fact that the tests in clause 8 are wholly subjective. They are the result of a bodge that will not work. We cannot have a Bill that brings into law subjective tests that then have to be adjudicated by a court, which is exactly what the registrar hearing will be, unless they can be subject to objective proof, which they cannot.

So, the tension will persist between the total banners and those, like me, who want hunting to continue. If the Bill is enacted with clause 8 as it is drafted at present, subject to the amendment of the

hon. Member for Wolverhampton, South-West, those who want a total ban will not be satisfied. They will therefore push until they get what they want; that is what happens in politics and I am happy to play that game too. I will stick my heels in for as long as possible before I am carted off to somewhere else—or out completely.

I want us to understand the reality of what we are doing. If anyone in this Committee thinks that we are having a genuine discussion about whether clause 8 should stand part, we are fooling ourselves. I do not want it in for the reasons that I have expressed endlessly since 1992 and the hon. Member for West Ham and his friends do not want it in for the opposite reasons. Whether the Foot-Powell arrangement will help both or neither of us we have yet to see, but we will find out when the Bill returns to the Floor of House.

Mr Rob Marris (Wolverhampton South West, Labour)

The hon. and learned Gentleman is legally qualified. He talks about a subjective test in clause 8. He will recall that section 1 of the Theft Act 1968 states that theft is the dishonest appropriation of

''property belonging to another with the intention to permanently deprive''.

Legally speaking, the provision mixes the subjective and the objective. It refers, for example, to the intention to permanently deprive. It could be said to be subjective in the sense that the judge who hears the case must decide whether the defendant had such an intention. Is that relationship between the subjective and the objective any different from what we have in the clause?

Mr Edward Garnier (Harborough, Conservative)

The hon. Gentleman perfectly accurately tells us what section 1 of the Theft Act says. I sat as a Crown court recorder 20-odd days ago, and I frequently have to advise juries about what, in legal Latin, is called mens rea, or intent. Various other aspects of criminal law require jurors to consider what was going through a person's mind at a particular time. They must do that largely on the basis of what the person said, did or knew at that time. That is largely an inferential exercise; it is not as easy as making findings of fact about where a person was or what colour a vehicle was. Those are easy questions, with yes or no answers. Intention and the state of someone's mind are much more difficult to explore.

In the clause, we move to a much higher level of difficulty. One cannot reach a conclusion about what is cruel simply by examining one person's mind; one may need to examine a whole culture to find out what is acceptable. There is also the question of what is acceptable now as against what might be acceptable in a year's time, because social mores change. In my view—people are perfectly entitled to disagree—courts of law are not good at reaching conclusions about matters of historical or moral controversy. To take some easy examples, a court is not a sensible place to discuss and reach a conclusion about whether abortion is a good thing or whether we should approve of homosexuality. It is not for the courts to reach such

conclusions; it is for you and me, Mrs. Roe, to form our own opinions in our private lives and discussions.

Mr Rob Marris (Wolverhampton South West, Labour)

The hon. and learned Gentleman may have to decide such things or to advise a jury on them when he is moonlighting, but what about issues of obscenity under the Obscene Publications Act 1959? In that respect, the legal process must reach a conclusion.

Mr Edward Garnier (Harborough, Conservative)

We can swap examples and demonstrate what clever lawyers we are because we know all about such cases, but I am—[Interruption.] I wish that I could afford as much as champagne as the hon. Member for West Ham seems to consume.

Mr Tony Banks (West Ham, Labour)

Give up the women and the gambling and you might. [Laughter.]

Mr Edward Garnier (Harborough, Conservative)

Perhaps the hon. Gentleman is mistaking me for a Liverpool footballer, or for himself. Who knows?

The hon. Member for Wolverhampton, South-West and I can swap examples from one bit of ''Archbold'' or another, but that does not really help us. My point is that the courts are not good at reaching conclusions about matters of moral or historical controversy. Let me give the hon. Gentleman an example from the area of law in which I practise; defamation. When a court discusses matters of fair comment, it does not say that it must agree with the comments made by the defendant publisher, book writer, journalist or individual. It asks, ''Is it a comment? Is it a fair one? Is it one that a reasonable man might honestly make?'' That is all that it does. Things may be said that are hurtful or disagreeable, but as long they are in the form of a comment, a court will simply confirm a person's right to hold those opinions and to express them.

Mr Rob Marris (Wolverhampton South West, Labour)

That overlooks malice.

Mr Edward Garnier (Harborough, Conservative)

It does not overlook malice, because malice is an integral part of the test that the commentator must deal with. It is for the claimant—the person who feels that he has been aggrieved by the comment—to demonstrate that the defendant, the publisher or the commentator was actuated by express malice. We then return to what was said, done or known by the defendant.

The hon. Gentleman will be familiar with the case of Horrocks v. Lowe, a 1974 appeal case; I shall not give him the page reference, as I am sure that he knows it already. Lord Diplock, in giving the lead judgment in that case, said that courts should be extremely slow to reach a finding of malice, because that goes to the root of the destruction of freedom of speech.

That is all a great distance away from clause 8 of the Bill. However, I am seeking to demonstrate that the Bill imports into this controversy an unnecessary difficulty, with which the registrar will have to grapple. It will not make our life easier, nor that of the registrar, when one considers the huge emotions that are built up behind the issue.

If we are honest, the real debate, camouflaged with all this guff about the two tests, is about which side of the argument should hold sway; whether hunting should be banned altogether, or whether, as I would prefer, it should be allowed to continue.

At present, the Bill brings those two arguments together in clause 8 in this bogus, artificial and unsatisfactory way. I predict that, by virtue of its unsatisfactory nature, if clause 8 is passed into law in this form, it will break down in due course. People such as the hon. Member for West Ham will then say, ''I told you so, we should have had a total ban to start with.'' At that point I, were I so inclined, might say, ''I told you so, we should have left the damn thing alone from the very start.'' We should have left it to the Independent Supervisory Authority for Hunting to deal with the issue, along with the sporting bodies who currently govern—and govern very well—the activities of those who hunt.

The hon. Member for West Ham, and many other Government members, believe that hunting is cruel, and cannot accept in their heart of hearts that cruelty can be licensed. I suspect that they are not interested in a dispassionate examination of the utility test because they will never get past the other part of the test, which concerns cruelty. In their minds, hunting is cruel and should not be licensed, and that is the end of the matter.

I am concerned that we cannot consider clause 8 without looking at what the registrar will have to do, and how the registrar system is set up in the clauses immediately following clause 8. That is inevitable because of the way in which our procedures are designed. It is necessary to examine clauses 9 to 20 to gain some understanding of what clause 8 is about and the way in which it will be applied. As I said in my opening remarks and in my discussion with the hon. Member for Wolverhampton, South-West, I believe that the registrar and tribunal system are a wholly unsatisfactory and unworkable way of dealing with the two tests.

I suspect that, when the Bill was drafted, it was known that it would lead to trouble. However, it was probably thought that that did not really matter, because if the unsatisfactory nature of clause 8 and the way in which it was applied were to lead to a further examination of the Bill—either in this Parliament or a later one—the likelihood would be that that would result in a total ban. Thus the overall purpose of the ''banners'' will have been achieved. The Government, however, can wash their hands of the matter, saying that the total ban was not their fault, and that they had done their best.

That is inevitable and predictable. The hon. Member for West Ham also thinks that it is inevitable and predictable. In making their views known on clause 8, only he and the hon. Member for Sherwood have so far supported that view of inevitability. If there are others who agree with them, we shall hear from them now, or on Report in larger numbers on the Floor of the House.

Mr Lembit Öpik (Montgomeryshire, Liberal Democrat)

As my fellow Middle Way Group member the hon. Member for Mid-Worcestershire has already said, we support the principle of clause 8. It is sensible, and all the way through the debate we have sought to credit the Minister for seeking to put principles at the heart of the legislation. Our issues, as my hon. Friend pointed out, are ones of content. We feel that the clause is over-restrictive.

Rather than repeating what my hon. Friend said, I want to add two other considerations. One point that has come up throughout the debate is my concern that the Minister seeks to apply the considerations of utility and suffering sequentially, instead of in a comparative way. I see more clearly now that there is a discreet difference of view on that matter. I feel that cruelty is determined on the basis of comparing the utility with the suffering. To his credit, the Minister has been clear in saying that the first test is one of utility and the second one of suffering.

To make the legislation work effectively, it is unavoidable that any registrar will have to make a comparison between utility and suffering. That is what we do in matters of animal welfare all the time. For example, a vet would seek to consider the best course of action in addressing the condition of a sick animal by considering how much extra suffering would be caused in dealing with the wound. It might be more humane to put the animal down. A vet regularly makes the comparison between suffering and benefit when addressing the condition of an animal.

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

No, the registrar and the tribunal cannot bring the two tests together in the way that the hon. Gentleman suggests. They have to deal with them sequentially; that is what the Bill requires. I suggest to the hon. Gentleman that if he took the example of the vet and unpacked it, he would see that the vet starts off by diagnosing what is wrong with the animal. How he cures it and deals with the problem is the utility of the treatment. He would then look at the impact of the treatment, which will cause some suffering.

A lot of medical treatment does cause suffering, whether it is carried out on an animal or a human being. It might be mitigated by anaesthetic, but it might not. Treatment may lead to a degree of suffering that is cruel. That may be because the suffering is not necessary; the repair of the limb, or whatever it may be, is not sufficiently important for the amount of suffering involved. There may be another way, such as amputation, a splint or plaster. One has to deal with the considerations separately to be logical. I would accept that, in many circumstances, people consider cruelty in a vague sort of way and muddle together the two concerns, but the Bill is logical. The tests for cruelty could be applied in a variety of other circumstances.

Mr Lembit Öpik (Montgomeryshire, Liberal Democrat)

I understand the Minister's adherence to the sequential nature of the application of those two considerations. My concern is that in reality—I do not want to spend time on examples—such considerations cannot be looked at in total isolation.

Mr Peter Luff (Mid Worcestershire, Conservative)

Will my hon. Friend invite the Minister to flesh out the last part of his remarks during his intervention? He seemed to suggest that the tests should be applied in other circumstances. I wondered what circumstances he had in mind.

Mr Lembit Öpik (Montgomeryshire, Liberal Democrat)

The example was from another circumstance. My example is somewhat similar. Not so long ago, I owned a cat, which was run over. The cat was seriously ill. We took it to the vet, who said that he could probably save its life, but that his judgment was that the benefit of continuing its life was

more than exceeded by the suffering that it would experience during the operation and the pain that it would suffer for the rest of its life. Having to judge between the utility of trading its life and the associated suffering, I decided that we should put the cat down. Indeed, that is what happened.

That veterinary example will unavoidably present itself to the registrar. I can understand why the Minister feels that that is not necessarily the case. It may be more appropriate to deal with it on Report or Third Reading. I remain unconvinced that the sequential approach of clause 8 is the best way to proceed. That said, however, it is too late to table amendments to change that sequential ordering.

Secondly, the list of utilities is unreasonably limited. We have had a long discussion about it, but I remain concerned that rather than listing genuine utilities we have listed the utilities that people would like to have. That is contradictory, because many people on the pro-ban side have repeatedly said that those who hunt with dogs do it because they enjoy it; that is a way of saying that they derive utility from it. It was certainly my view from the three-day hearings in September 2002 that there was at least implicit acceptance that recreational considerations were a utility. My concern is that simply eliminating that and other considerations about general wildlife management, infringes on the list of genuine utilities that should be taken into consideration. The point has been made, however, and I do not need to say more now.

I conclude by concurring with the hon. Member for Mid-Worcestershire that I do not want those principles to be abandoned in the Bill. Even with its weaknesses and deficiencies, it is laudable that the Bill should have such principles at its centre. To vote against it would somehow contradict the arguments that the Middle Way Group has put forward. I shall agnostically abstain, for exactly those reasons that the hon. Gentleman outlined, in the hope that the amendments can be improved in another place.

Mr James Gray (North Wiltshire, Conservative)

If indeed the amendments are to be replaced in another place, they can be brought back afresh. If we believe that it is a bad, wicked clause, amendments can easily be tabled in the Lords. Leaving the Bill as it is risks it becoming law in its current form.

Mr Lembit Öpik (Montgomeryshire, Liberal Democrat)

I understand, but the hon. Gentleman and I have differing views on the matter. Faced with legislation that contained these proposals in their present form or no principles at all, I would still choose the flawed construction of the Bill. However, I reserve my judgment.

The clause is better than having no principles, but it is unfairly limiting. In addition, as the Middle Way Group does not want to play politics, I would be sending a confusing signal by voting against clause 8. Another reason is that the group has said that it wants us to debate principles rather than points of detail. It does not feel right to vote against the clause at this stage. To those who say that the Middle Way Group has lurched towards the pro-hunt lobby, I remind the

Committee that we have been fairly consistent in our opposition—on clause stand part and more generally.

The hon. Member for Mid-Worcestershire and I believe that there has been some movement from the pro-hunt lobby. There has not been so much movement from the pro-ban lobby and I counsel them to be careful. The irony is that if they persist in trying to ban a process, rather than to improve animal welfare, they will make animal welfare worse. Despite the strong language of the hon. Member for West Ham, who sadly is not here at the moment, I do not believe that a total ban could be enforceable.

As hon. Members think about this and further amendments, I ask them to lay aside the momentum behind their fixed position and be willing at least to entertain the possibility that some of the positions put forward by the Middle Way Group would benefit everyone. We have put our money where our mouth is. We are conducting research to try to get to the heart of the matter. In the last few sittings, we have welcomed amendments that we had not thought of that were tabled by hon. Members who are ostensibly on the other side. The amendment tabled by the hon. Member for Wolverhampton, South-West is a good example. If we do that, we can make progress and improve the clause, even if we have to do so on Report.

Mr John Gummer (Suffolk Coastal, Conservative)

I rise to speak on clause stand part because clause 8 is the centre of the Bill. I know that the Minister feels that there is a degree of antagonism between us. I wish to get rid of that. I want to explain why I have moved in my views and why I feel that he has not done what he could have done in trying to frame this clause. Whereas I was antagonistic towards the idea of yet more regulation and control, I realise that if we are to have a consensual result we have to move to the position where we can set out a fair way to ensure that those things that people who dislike hunting believe happen, do not happen.

The difficulty is that once we move from the position of doing nothing about it to banning it we need firm ground on which to stand. My problem with the clause is that the Minister has not staked out any firm ground. He did not answer my criticisms about whether he had a moral or philosophical basis for the clause. He did not answer the two key issues. To have a philosophical or moral base, the clause has to be applicable in all circumstances that are parallel. Otherwise, it is partial and particular. Secondly, it needs to have at least some support from those who have spent their lives looking at things from a moral, philosophical or theological point of view and it does not have that either.

The difficulty is therefore that not only does the clause have no strength upon which to depend, but because the Minister has presented his two tests in this way, he gives strength to others to apply them in other areas. I have used a number of examples because those do not concern only man's treatment of animals. They are also about man's treatment of humans and of babies. It is extremely embarrassing for those who take the view that they take on this subject if those tests are applied in such delicate areas as abortion.

The Minister failed to prove to the Committee that he has a philosophical or moral base. The second base he could have would be a rational one. He could say that he did not expect this to be taken outside this context, but given the mess that we are in this is a reasonable, rational basis on which to proceed. It is not rational to decide that a registrar is needed to deal with foxhunting, but to decide in advance that one can take an absolutist position on stag hunting or hare coursing. Not only do I think that it is not rational, it is not rational, because the Minister has so far failed to show us the golden thread that links his thoughts to one, but not the other. He has not shown us why one should be subject to clause 8 and the other should not, he has only given us his personal view why that should be so.

Mr Edward Garnier (Harborough, Conservative)

Will my right hon. Friend give way?

Mr John Gummer (Suffolk Coastal, Conservative)

I will do so in one moment. That fact is disappointing, especially in the circumstances to which my hon. Friend the Member for North Wiltshire rightly drew attention. The Minister has a past, which in this particularity I share with him: he has been through the mill on this Bill, or a similar one, before. On the previous occasion, he gave it as his indisputable and actual belief that there should be no hunting of any kind. He has changed his mind, as he has every right to do, but he must therefore explain why he has changed his mind in one particular, and yet in precisely the parallel case he has not. The Minister has failed to take us seriously enough to make that distinction.

Mr Edward Garnier (Harborough, Conservative)

My right hon. Friend accurately suggested that the position taken in the clause was not rational and neither was the Minister's espousal of it. Much that we do in politics is not rational. The way in which our constitution has evolved is not necessarily rational either, but at all stages it is reasonable. That is why it achieves public and popular acceptance. However, the proposal is neither rational nor reasonable and I urge my right hon. Friend to continue to criticise the Bill in his usual trenchant way.

Mr John Gummer (Suffolk Coastal, Conservative)

I will not follow my hon. and learned Friend on the distinction between rational and reasonable as I was going to use a word other than reasonable in order not to confuse them. I was going to use the word ''practical''. I was going to say that sometimes what seems to be the rational way forward must be mitigated by practicality, which is the third ground on which the clause could have been based.

I am concerned about a rationality that makes subjective distinctions between different species. It is hard to accept a proposal that makes the rabbit a wholly different being from the hare, especially as one of the first Bills to propose banning hunting was produced by someone who, when asked on television to choose between a rabbit and a hare was unable to distinguish between them. Dogs or hounds do not distinguish easily between various types of running game, but rabbits are not unlike hares for all sorts of reasons, not least that rabbits can be a pest and so can hares, as I know from painful experience, as they have done significant damage to some trees that I planted.

There is a difficulty in the rationality of the distinction between the different mammals and the way they are to be treated. Therefore, the third ground concerns the matter of practicality. I do not want the Minister to accuse me of suggesting that we should not do things because I am threatening him with great law breaking. But I want to tell him about the practical problems that will result from the clause. He is suggesting that quite complicated decisions will be made, and a great deal of work done, by the law enforcement service. I mentioned to the Minister earlier—he felt that I had done so incorrectly, so I shall now say it differently—that in practical terms, severe damage will be done by this irrational, not very philosophic and certainly not moral clause.

Someone who lives in a country area such as mine has grown used to expecting that the police might be unable to come to their aid, even if there is a severe reason. I have two recent cases to illustrate that. In one, last August, someone was hit over the head on his doorstep. He did not manage to get a policeman that night, or until he went down to the local police station with a bandaged head at 12 o'clock the next day. He had been promised a policeman but was then told that that was impossible because there were not enough policemen or police cars. In the second case, someone drove illegally across four counties even though the police had been notified. When the policeman arrived to take evidence on the taking of the car, he commented, ''You're No. 8 on my clipboard.'' That was although the man was driving under the influence of drugs across that county and neighbouring ones.

It is not easy for people in the countryside to expect such law enforcers to take greater responsibilities on to their shoulders, unless they can see that the argument for that is rational and practical. That is why clause 8 is so difficult for me to sell to my constituents, as I would wish to if it were a consensual clause. They will say that it does not stand up practically and sensibly and will mean that the people who will try to enforce it will do so at the cost of not enforcing laws that are, for us, more rational, practical and sensible.

That is why the practicality test is so important. It is not practical to ask people to make the distinctions that they are here supposed to make; nor is there any practical reason for making those distinctions. I cannot see practicality in saying that the registrar can deal with foxes but not with stags. I cannot see practicality in saying that he can deal in certain cases with some kinds of mammals but not with others. I cannot see practicality in the fact that although I can set dogs on rabbits, if the rabbits disappear and are replaced by a hare, I should be stopped by the police. That is not practical, rational or moral, and should not be here.

Mr Gregory Barker (Bexhill & Battle, Conservative)

I am listening closely to my right hon. Friend's powerful speech. Does he agree that the other gaping hole in the Minister's case for a rational clause is his failure to bring before the Committee any clear and persuasive—to use his terms—independent scientific, veterinary or clinical evidence to show that hunting foxes with hounds demonstrably causes more suffering than any other form of control? It is that

singular lack of credible, independent evidence that makes a sham of everything that he is trying to do.

Mr John Gummer (Suffolk Coastal, Conservative)

That is a great gap in the way in which the Minister has argued his case. If he wished to base his case on rationality, he should have had such evidence, brought it to us and used it to convince the Committee. He has not done that.

There is a fourth basis on which the Minister could reasonably ask the Committee to support him. He could say that the clause is not especially moral, philosophic or rational, and that it has some impracticalities, but that it is consensual—the sort of measure that we can all gather round because we have to come to some agreement. He could have done that. This is where I find his protestations so difficult to accept. I know that you would discourage any suggestion of impropriety, Mrs. Roe, so I am not making any; but, although it may be my fault, I find it difficult to take the Minister's suggestion that he has brought before us a reasonable compromise that we are all unfair and unkind in not going along with. The truth is that that is not what he has brought, and we know that from his treatment of the Portcullis house hearing.

I have noticed that when the Minister knows that we are touching the truth, he loses his temper. When Jim Prior was about to be asked something difficult—I used to be his Parliamentary Private Secretary—I could tell that he was worried because he got a red neck. I knew when there was a palpable hit on Jim, and he would happily show his red neck to the people behind him—it would be very dangerous for a politician to become red at the front. The Minister also has an infallible gift. When he has been rumbled, he loses his temper. He does not forget losing his temper because it makes him cross that he has been cross, and he is therefore cross with the people who have made him cross.

On this issue, such behaviour is serious. In Portcullis house, no evidence was given by anyone to support the particular ''consensual position'' that the Minister has produced. Nobody suggested that there should be a change in the way in which utility should have been defined. Nobody suggested the dual arrangement that has been presented in the Bill. More importantly, nobody suggested that the system should apply to some mammals but not to others. The only merit to his proposal is that nobody agrees with it. It is not consensual; it is unique.

The Bill is all the Minister's own work. The problem is that he promised us that it would not be all his own work. Frankly, I talked about the Bill with some peppery, red-necked people, who said that they did not believe a word of it. I told them that he had said clearly that he would listen, that he had given three days of public hearings and that he had been perfectly fair in the way in which the dates were allocated. I took that to imply that he would base what he said on what he had heard. He appears to have meant that he would listen and then produce a clause that had no connection with the information that he heard during the three days.

Dr Alan Whitehead (Southampton, Test, Labour)

I have listened carefully to the right hon. Gentleman's exposition of the tests that prospective legislation needs to pass. I wonder whether he could help us by giving an example of a piece of legislation from the past 20 years that meets such criteria—first, philosophical or theological authorities approve of it; secondly, it is unassailably universal; thirdly, on the basis of the first two criteria, it works on the basis that there are no exceptions to which it applies. Those are the tests that he is attempting to argue should apply to the Bill.

Mr John Gummer (Suffolk Coastal, Conservative)

That is certainly not the test that I am applying. I would not have made such a claim on the basis of moral precepts. However, the Minister made that proposition, and I am merely saying that it does not wash in the Bill and that it rarely washes. Legislation that suggests that it is the enactment of a moral principle is usually poor and ill advised. I would not have complained about the Minister had he not said that the Bill is based on moral principles. I have shown that the principles on which it is based are not moral. I would not have bothered if he had started by saying that the Bill was rational, consensual or practical. That is the distinction. The hon. Member for Southampton, Test should not ask me to apply my argument to all the Bills that we have ever had, because most Ministers are sensible enough not to claim the cloak of morality when they present a Bill. The Minister has made a mistake and I do not want him to fall into his own trap.

I am coming to the end of my remarks about consensus. The Middle Way group has a problem: it has presented something that seemed to be between the two ends of the spectrum—those who thought that there was no need to do anything and those who wanted to ban things entirely. Those who said that there was no need to do anything may start to accept that, in the circumstances, perhaps some sort of independent system of registration or licensing arrangement might be a way of helping people to reach a consensus.

If those people move from one view to another, it is not fair to say that the middle has moved. That argument would be peculiar. It is neither geometrically nor philosophically acceptable. It cannot be true. That is another reason why the Minister must be careful. If he wants a consensual answer, he must not be unfair to those who have been trying to get one.

I make those comments about a group with which I do not agree, although I honour it. My hon. Friend the Member for Mid-Worcestershire is a gentleman with whom I often agree and, in general, I suppose that we come from the same political position on many issues—that comment may do him harm, but I am past that point. However, I do not agree with him on this subject and, notwithstanding all the work that he has done, we do not need to be in the position that we have reached.

In the circumstances, however, because we should try to find a civilised answer, we should try to find one in the middle. That is why the clause is so bad. I understand the problem that is caused by sending signals, so I will clearly explain the fundamental reason why I will not vote for the clause—it is not

consensual. It is a mechanism that says irrationally and immorally that certain types of hunting are, of their nature, wrong. They cannot be considered. They cannot be useful or seen to be anything other than cruel. However, some types of hunting might pass a test that has, during this debate, become narrower and narrower, and does not take into account any of the statements made in any of the discussions that took place.

The clause should not stand part of the Bill. The Minister has caused much antagonism because he has presented a false prospectus. He promised us that he would produce a clause and a Bill after listening to all of the evidence. The clause is not based on any evidence gathered on the series of precise subjects put forward by my right hon. and hon. Friends and others who support the middle way.

The Minister has failed to produce the evidence. He cannot point to the facts or the truth. He has listened, but he has not heard. That is the problem. He cannot expect other than antagonism if, having promised to be one sort of person, he has turned out to be another. I will not say that he is a wolf in sheep's clothing, because that may point to the predatory position that human beings ought to have in the chain. It might lead him to think more seriously about the real moral nature of what mankind is supposed to do in our natural role, in the way in which the creator formed the earth.

One of the interesting things about the Labour party is that it does not want to get down to any basic issues. Labour members want a nice bit of 21st century moral sentimentality, which is the replacement for religion that new Labour is keen on. The Minister promised to do something high-minded but he has shown himself to be rather lower-minded than we hoped.

Alun Michael rose—

Mr James Gray (North Wiltshire, Conservative)

On a point of order, Mrs. Roe. Before the Minister winds up, I should point out that I fear that he may inadvertently have misled the Committee and he may wish to correct himself. You will recall that he belittled my argument that the dispersal of foxes is a utility. Among other things, he argued this morning that it was not mentioned during the Portcullis house hearings. I have the transcript in front of me. The Minister himself said that he was struck by the fact that the issue of disbursement of fox populations had

''come up again and again over the last few months''.

He has misled the Committee.

Mrs Marion Roe (Broxbourne, Conservative)

That is not a point of order. That is quite enough.

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

It has been an interesting debate. It is interesting how members opposite think they are on strong ground, particularly the right hon. Member for Suffolk, Coastal, who appears to think he is taking the moral high ground. I would be happy to debate religious issues with him. As an active member of the Christian Socialist Movement, I believe in the relationship between one's beliefs and one's politics.

However, that could detain the Committee for a long period of time. As trepidation is expressed on the faces of my colleagues I do not intend to be tempted down that road now.

In starting the debate, the hon. Member for North Wiltshire moved by implication that clause 8 should stand part of the Bill. He then spoke against the motion, so for the avoidance of doubt, I would wish to move that clause 8 stand part of the Bill.

The right hon. Gentleman for Suffolk, Coastal, had a number of misapprehensions. I find it difficult to answer some of his arguments because I am not such a natural extremist. He suggested that I lost my temper. No; I became irritated once or twice by misrepresentation on the other side of the Committee, but I promise the right hon. Gentleman that if I lose my temper in Committee he will know all about it.

My hon. Friend the Member for The Wrekin suggests that I have his support, which I am glad to know. The right hon. Member for Suffolk, Coastal suggested that I had had a change of mind. What has happened on previous Bills is that, like many, I have had to make a judgment on the basis of the evidence available to me and the principles presented in the Bill as to whether to vote for or against various amendments. This time I have a different duty to the House and to my friends and colleagues; to put to the House a Bill that will make good law, based on principles and evidence.

Since the right hon. Gentleman seeks to call that into question, I assure him that I will continue to argue for what I believe to be right in the legislation. I have sought consistently to do that since the responsibility was given to me. I am pleased that the discussions with some members on both sides of the Committee have been about trying to tease out logically what would be best, what could be bettered and what would be right in the circumstances. To use the right hon. Gentleman's term, I want the legislation to be practical. I do not see ''practical'' in opposition to principled. It is important to align the two qualities.

The right hon. Gentleman admitted that he does not believe Parliament should intervene at all on hunting. That is an honest position to take, but we can take with a pinch of salt some of his high-falutin arguments on minimising the effect of Parliament's intervention. He said that if we were to intervene, I needed to explain how we would make the necessary judgment. I thought that I had already done so on a variety of occasions in statements to the House and in response to questions.

It boils down to this. In making a judgment about which activity should be allowed and which should not, we must answer a basic question, which many of my colleagues find easy to answer when it is posed generally; how can it be right to set one animal or group of animals on another? The question is not whether it is right for that to happen in nature, which it does, but how it can right for human beings to set an animal, mammal or group of animals on another? For many hon. Members, such as my hon. Friend the Member for West Ham, the answer will be that it can

never be justified, or justified only in exceptional circumstances. I believe that we can come up with the answer by asking two questions. Is the activity genuinely beneficial? Is it necessary?

Earlier in the debate, I asked various questions about what the benefit and the necessity would be. If we construct a reasonable test of necessity, which is a threshold that is ''tough but fair''—to use The Guardian's phrase—and poses a genuine challenge, so that it is beyond doubt that there is utility to be delivered, we can then ask the second question. If the activity to bring about that utility involves suffering, can that suffering be justified? There must be a framework for answering both those questions.

I understand the point made by the hon. Member for Montgomeryshire several times that we should somehow take the questions together and make them one. That is like saying that if we have four ounces of utility, we must have three ounces of suffering, but not six. That leads to some of the muddled thinking that underlies the criticism—

Mr Hugo Swire (East Devon, Conservative)

Will the Minister give way?

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

I will give way in a moment.

In my statement on 21 March, I identified the questions that emerged from the hearings of Lord Burns and the conclusions of his report. The two main questions are how we eradicate cruelty—we all know that the definition of cruelty is ''causing unnecessary suffering''—and how we recognise utility and the activities that are genuinely necessary for land management so that we can take seriously the claims of those who vote for the utility of those activities. That is why I made it clear in my statement that I would respond positively to animal welfare organisations and to the Countryside Alliance. The alliance asked me not to re-open the issues highlighted by the Burns report, but to take the work of Lord Burns and the commission and use their conclusions as the starting point for my activity.

I agreed to do so, and to ask how we would define utility and cruelty and establish the principles against which activities will be allowed or not allowed. I made it clear that those questions arose from the Burns commission report, which is why they were so clear at the starting point, why they have consistently remained so and why they are set out in clause 8 at the heart of the Bill.

Several hon. Members rose—

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

I will give way first to the hon. Member for East Devon, secondly to the hon. Member for Montgomeryshire and thirdly to the hon. Member for North Wiltshire.

Mr Hugo Swire (East Devon, Conservative)

Falconry involves setting one animal on another, so how does that fulfil the Minister's criteria of utility or avoidance of suffering?

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

I have carefully considered the evidence. It is the natural nature of the activity that leads one to conclude that it should be outside the scope of the Bill and should not be debated.

Mr Lembit Öpik (Montgomeryshire, Liberal Democrat)

It is in the nature of the dog to kill the fox. Although it is not immediately obvious, does the Minister accept that the word ''necessity'' implies a balance between suffering and utility? For example, a farmer would say that it was a lot of hassle to kill foxes, but that they do a lot of damage to his lambs, which suffer when they are attacked. I do not want to pursue that question now, but my argument is that we cannot get away from that calculation, because the word ''necessity'' implies consideration of the balance between suffering and benefit.

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

That immediately implies a balanced judgment, which is why it is important to define the terms as I sought to do in drafting the Bill. One could, as the hon. Gentleman implied, put the test of suffering, or cruelty, with utility, but I think that that would lead to a muddle. It is more sensible to deal with the two issues separately and sequentially and to provide sensible thresholds, so that a rational judgment can be made within a clear framework. I want to do that because it is practical and logical.

Mr James Gray (North Wiltshire, Conservative)

The Minister makes great play of the fact that, following his statement on 21 March, he listened carefully to various people and that the Bill is a product of that consultation and consideration. How does he explain the fact that on 19 March, two days before his initial statement, Philip Webster in The Times accurately predicted that the Bill would lead to

''the end of hare-coursing''

and stag hunting, that foxhunting would be outlawed and that people would

''switch to draghunting''

and that

''what Ministers call utility issues would''

mean

''that hounds could still be used to kill foxes in areas''

of upland, and so on?

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

It is interesting that the hon. Gentleman should put it in that way. It sounds as if Philip Webster had read the Burns report. The hon. Gentleman referred to upland areas, which are specifically mentioned in that report. The answer is clear, but the trouble is that the hon. Gentleman wants to muddy the waters and to put doubt in people's minds. He should listen to precisely what is being said during the debate.

Mr. Gray rose—

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

I remind the hon. Gentleman that he did not do me the courtesy of giving way during the previous debate, but I was being courteous to him.

Mr James Gray (North Wiltshire, Conservative)

On the point that the Minister mentioned, I had given way on at least four or five occasions on precisely the same point before I finally refused to give way.

The Minister suggests that the banning of stag hunting and hare coursing, which Philip Webster accurately predicted, somehow came about as a result of the hearings at Portcullis house, or as a result of the Burns inquiry. In neither instance did anyone, whether scientist or zoologist, suggest that stag hunting or hare

coursing should be banned. Philip Webster predicted it and the Minister is doing it. Why?

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

The hon. Gentleman is talking nonsense, but we are getting used to that. First, Philip Webster can hardly have taken into account the hearings in Portcullis house, because those took place in September. Secondly, Lord Burns referred to both coursing and stag hunting in his inquiry. His report has already been quoted during the Committee. The hon. Gentleman is simply attempting to introduce innuendo and I refute his attempting to cast aspersions.

I have described how I began on the basis of trying to get the correct principles on which to base the proposed legislation and how, during the subsequent months, I moved thoughtfully to give the maximum opportunity for everyone with an interest to answer the two questions. Those were as follows. First, how do we recognise utility? Secondly, if something is necessary, how do we decide what should be permitted if it is not cruel within the terms devised?

There are other matters to be considered. Legislation must be enforceable. We have seen the problems that arose with the Scottish legislation. I do not seek to criticise that, because the Scottish Parliament decide on their legislation. That did not suddenly turn off a tap of activity, because it is essentially retrospective. Legislation must look back and ask what people are doing and how they are to be punished, rather than ask in advance how something could be prevented from happening.

The hon. Member for North Wiltshire gave a rather confused contribution that seemed to be based on a vain hope that if he repeats misrepresentations often enough, we will get so tired that we will stop rebutting his arguments. [Interruption.] He may grumble about that from a sedentary position, but that seems to be almost the only technique that he introduces.

I will be brief. The hon. Gentleman asked me why hare coursing is banned. It is banned because it does not have utility. It does not pass the utility test in the way that it is defined by hare coursers; look at the national website. To put hare coursing under the conditions of clause 2 would be a cop-out. My test does not depend on what someone intended to do. Coursing does not seek to catch the hare so it cannot be useful and cannot be pest control. I refer hon. Members to my earlier explanation on deer hunting; if necessary, I will repeat what I said if hon. Members repeat their challenges when we come to clause 6 and other parts of the Bill.

The hon. Gentleman's intervention contained an attempt to make general comparisons between shooting, hunting and trapping. It is dangerous to over-generalise. One has to consider where generalities are appropriate and where they are not. Commenting on the choice between lamping and hunting, Burns suggested that, in general, lamping was preferable. However, he also suggested that, in some circumstances, lamping might not be possible and that other options might be more cruel than using dogs. The Bill is designed to provide a framework for answering such questions.

The expert advice in the debate at Portcullis house was not that all mammal species should be treated the same. During the sessions on cruelty relating to different species, it was argued that, as the length of the chase and the nature of the death varies between species, it was sensible to consider hunting with dogs species by species. Most past legislation has done just that. We need to make judgments based on principles, and we need to apply the same principles to different cases. That is why I have looked for an expression of principles that could be applied consistently to different species in different circumstances. When the same tests are applied to evidence, the registrar and the tribunal must come to clear and consistent conclusions. They must make objective decisions—does the hunting proposal have utility when measured against the test in clause 8(1), and does it achieve least suffering when measured against the test in clause 8(2)? If the answers are no, the proposal is cruel and should not be undertaken. The proposal may pass the tests, however, and other options may be crueller, may involve more suffering and may not have utility. Therefore, it is surely sensible to have a system that allows such judgments to be made.

Mr Peter Luff (Mid Worcestershire, Conservative)

After it is published, I will check what the Minister said in the Official Report. I understood him to say that there was not a consensus at the Portcullis house hearings that all animals should be treated in the same way. In fact, there was a clear consensus that all-embracing animal welfare legislation was needed and that to single out a small group of species was inappropriate. What can he cite from the Portcullis house hearings to justify what he has just said?

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

I did not refer to a consensus. I said that we tested—against the principles that I had set out as early as March—the evidence that was offered for a variety of circumstances.

I want to discuss the new clauses tabled by the hon. Member for Mid-Worcestershire. They are, in effect, a straight lifting from the Middle Way Group option in the previous Bill, as the hon. Gentleman acknowledged. This Bill, as drafted, deals with the cruelty and unnecessary suffering that is associated with hunting with dogs. If the Bill were amended in the way he suggests, there would be no test for utility or suffering. Judgments would be made without a basis of principle. That inherent weakness has always been my difficulty with the hon. Gentleman's proposals. I know that he did not like the phrase, but that is why I said that the Middle Way Group option was a way of licensing cruelty.

Mr Peter Luff (Mid Worcestershire, Conservative)

The Minister is wrong. Our proposed new clauses are intended to help the Committee in case a vote goes against clause 8 standing part of the Bill. The new clauses offer an alternative framework. I accept that they do not reflect the Minister's intentions; they are there in case those intentions cannot be fulfilled.

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

I do not think that I need to expand my argument any further.

Subjectivity is an important point to nail. The clause 8 tests do not contain an element of intent. They are therefore less subjective than the Theft Act offence

referred to by my hon. Friend the Member for Wolverhampton, South-West. The registrar and the tribunal must determine whether proposed hunting is necessary for pest control and, if so, whether it is likely to cause significantly less pain than any reasonably available alternative method. Making that determination will require an objective assessment of evidence and not a subjective or moral judgment.

Mr Gregory Barker (Bexhill & Battle, Conservative)

On that point, the Minister told us that he based his principles on the Burns report. In paragraph 9.53, Burns concluded that further research should be employed in the event that

''there would be advantage in establishing some form of licensing system to control all forms of hunting with dogs.''

He continues in paragraph 9.54:

''We have noted, in earlier chapters, a number of issues on which there appears to be a lack of firm information. A good many of these would probably lend themselves to further work''.

In paragraph 9.55, he lists the areas that would benefit from further work and research. The last point is:

''comparative welfare implications of different methods of killing foxes''.

Is the Minister simply basing his whole premise on uncompleted research?

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

The hon. Gentleman has got it entirely wrong. The structure and framework provided by the Bill mean that if further evidence becomes available, it can be played into the decision. It may well be that some things that are acceptable now would change if different evidence were available. As has happened in the past, new quarry species may emerge. The Bill would deal with that. We would not have to wait for new legislation.

My hon. Friend the Member for West Ham raised genuine concerns, which I know that he holds, and about which he has talked to me. I wish to persuade him of the virtues of clause 8—he was clear but restrained in honestly expressing his reservations—because it will make clear what people can and cannot do. It will not retrospectively catch people for having done things that legislation has banned, but it will make clear in advance what they can and cannot do. That will make enforcement much clearer for the police and the authorities, and ensure that cruelty is eradicated in the way that I believe most Committee members want, even if they have different views of the legislation. My hon. Friend acknowledged the difficulty of getting clarity and tidiness into and around the edges of legislation.

I have two final points. Any future Government with a parliamentary majority can change legislation. The better and more effective the legislation, the more likely it is for it to be unthinkable to turn back the clock. It would take an affirmative resolution, and therefore a majority of the House, to change the Bill.

Mr Edward Garnier (Harborough, Conservative)

Will the Minister give way?

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

I am dealing with the arguments of my hon. Friend the Member for West Ham. His second point was on effectiveness. Months after

legislation is enacted, I do not want to see a continuation of an activity that has been banned and to have to use the court to stop that. I hope that my hon. Friend understands what I am trying to do in ensuring that the legislation bites quickly to fulfil the will of Parliament.

Mr Tony Banks (West Ham, Labour)

My right hon. Friend has certainly taken great pains to give greater precision to the proposal in the Bill and he should be commended for that. However, it still allows hunting. It still allows an activity that I find abhorrent. Ultimately, it is not a matter of how much is eliminated, but the fact that it does not eliminate it all that makes the Bill unacceptable.

Mr Alun Michael (Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs; Cardiff South & Penarth, Labour/Co-operative)

My point is that previous Bills have not banned all hunting. The last Bill before the House also allowed exceptions. The question is whether the Bill is clear about what is permitted and what is not, whether it is based on the right principles, and whether it will be successfully enforced. For any Bill to be enforceable, it needs the clarity of principles in clause 8, which we have debated well during the last few days, and I commend it to the Committee.

Mr Edward Garnier (Harborough, Conservative)

It is a pity that the Minister has precluded himself from answering this point. He concluded his remarks by saying that the Bill provides clarity. However, there is no clarity until the registrar and the appellate tribunal has decided on what is permitted. The Minister says that he is providing clarity, but the provision does not make for black-and-white law. This Parliament cannot anticipate what any registrar will do on the basis of the particular facts and evidence in front of him. The Minister is mistaken—and not for the first time.

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 20, Noes 9.