Mr Andrew George (St Ives, Liberal Democrat)

I beg to move amendment No. 262, in

clause 5, page 2, line 24, leave out '1' and insert '4'.

I shall be brief, because many of the points that I wish to make under this amendment have been rehearsed in our arguments on clause 4. The amendment would close a loophole and provide, in my view, an important defence for landowners and dog owners who knowingly permit their land or dog to be used in what they reasonably believed at the time to be registered hunting. It also bolsters an amendment, which I will be moving later, to clause 7, but I shall not pre-empt that debate. Without repeating the arguments put forward in the previous debate, it is important that landowners are not unfairly caught by the legislation.

It is also important that there is not a loophole for hunters. The amendment would remove the defence for hunters charged with an offence under clause 1 that they reasonably believed that their hunting was registered or exempt.

If clause 5 is not amended, there will be a loophole, which could be exploited by hunters who knew that they were either duping or misleading landowners into believing that they were registered or exempt. I hope that the Minister will accept the amendment and the need adequately to defend landowners.

Mr Hugo Swire (East Devon, Conservative)

I am grateful to the hon. Gentleman for his brevity in introducing the amendment. I do not necessarily agree with his objective or the way in which he seeks to achieve it. The amendment will not do what he thinks. I welcome his move towards believing that landowners should be protected from an inadvertent violation of the Bill. A few weeks ago, we had a discussion in which he seemed to be trying to achieve a slightly different objective.

Mr Andrew George (St Ives, Liberal Democrat)

The hon. Gentleman says that I am moving towards his position. If he looks at the Second Reading debate, he will see that I was the only person who drew attention to, for example, the potential pitfall of clause 7 and the fact that landowners would be inadvertently and unfairly caught by the Bill. I am not therefore moving to that position. Will he accept that I have consistently maintained my position?

Mr Hugo Swire (East Devon, Conservative)

I stand corrected and shall go back to Hansard. However, the hon. Gentleman and I have previously discussed the matter in Committee, where we did not necessarily agree. I shall take his point in good faith, but the amendment will not help the landowner. In a short space of time, I shall describe the ways in which it could be improved. It would delete the defence for persons accused of an offence under section 1 that they believed that their hunting was registered or exempt. Conservative Members do not like that.

The amendment would create a new defence for persons accused under section 4 of knowingly permitting one's land to be entered or used in connection with an offence under section 1, or knowingly permitting one's dog to be used for the same purposes. The accused could claim that they reasonably believed that their hunting was registered or exempt. The Bill would be fairer to the landowner if clause 5 referred to sections 1 and 4.

The creation of a new defence for persons accused of an offence under section 4, namely permitting one's land to be entered or used in connection with an offence under section 1 or knowingly permitting one's dog to be used for the same purposes, of showing that they reasonably believed that their hunting was registered or exempt is welcome. It was demonstrated this morning that the provisions in the clause are, to our way of thinking, draconian.

Clause 4 would make it a criminal offence for a person knowingly to permit their land to be entered or used in the course of the commission of an offence under section 1, or knowingly to permit their dog to be used in the commission of such an offence. As my hon. Friend the Member for North Wiltshire (Mr. Gray) said this morning, the ''secondary offences'' are not secondary offences. They are a series of primary offences that go beyond the normal common-law rules on secondary parties.

As we deliberate on the Bill—the Minister is not listening—I wonder what it is about hunting that justifies the creation of three new crimes. There are well-established common-law rules on secondary parties and it is draconian to go beyond them. Plainly, the aim is to enable the prosecution of as many people as possible, which yet again shows that this legislation has little to do with animal welfare. It is an anti-person not a pro-animal Bill.

It is worth going over again what a person has to know for these offences to be committed. What does ''knowingly permit'' mean? Does permission have to be given actively, or will mere failure to prevent the act when it is within one's power to do so be sufficient? Does the person have to know that a criminal offence is being committed, or is it sufficient to know what activity is taking place? How is anyone to know how to discharge the duty imposed by the word ''permit'' so as to avoid committing a crime? The Bill is silent on that.

By way of illustration, I shall offer two scenarios that show how the Bill could operate. A person walking his dog on the local heath goes on holiday, his next-door neighbour looks after the dog while he is away and follows the same route. One day the dog chases after a hare and is spotted by a person opposed to hunting with dogs. The dog owner and the neighbour may face prosecution.

It is well known that hares live on heaths. Animal rights activists launch a ''Save the hare'' campaign. The dog owner goes on holiday, the neighbour agrees to look after the dog and says that he may go on the heath. He does so, and the dog is seen sniffing around

following a scent. The owner and neighbour may face prosecution.

The amendment tabled by the hon. Member for St. Ives (Andrew George) would delete the reference to section 1, and we believe that that is unwarranted. The Minister was confused as to whether activities are exempt or require registration under the Bill. That reveals the plethora of grey areas that we expose day in, day out as the Committee makes progress. In the past, we have debated whether registration is required in certain circumstances, and we still have not reached a definitive conclusion. Those circumstances may involve field trails, in which gun dogs are judged on their ability to flush quarry from cover, including hares, and the training of young dogs for falconry, during which no bird of prey will be present to take any flushed animals. Concerns have also been raised, and were reiterated by my hon. Friend the Member for North Wiltshire a few moments ago, about flushing hares in winter fields to be shot. Does ploughed ground constitute cover? Must gamekeepers be registered in case more than two dogs in a beating line on a shoot flush a fox from cover?

If the Minister, who is the author and mastermind of the Bill, is confused as to what is exempt and what requires registration, how is the average gamekeeper or falconer meant to know? That could easily result in someone being prosecuted for hunting without registration when they thought that they were operating under an exemption.

We do not support the amendment. It is imperative for the sense, interpretation and enforceability of the Bill that the defence in clause 5 is retained.

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

I am slightly puzzled. The hon. Member for East Devon (Mr. Swire) was not in favour of the amendment and seemed to suggest that there was confusion in the Bill when there is not. Much of the confusion is in the minds of Opposition Members. If they read the record with a genuine will to be clear about what the Bill does and what it says, they will find that their questions have been clearly and adequately answered.

Mr Rob Marris (Wolverhampton South West, Labour)

Does my right hon. Friend agree that the hon. Member for East Devon misunderstands the Bill slightly when he talks about the neighbour who takes the holidaymaker's dog for a walk? That is covered in clause 45(2), which contains the definition of hunting. If a neighbour takes a dog for a walk and it chases a hare, that neighbour is not hunting.

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

That is correct. The definition of hunting is clear, as I have repeated several times. A person cannot take part in unintentional hunting. [Interruption.] The hon. Member for North Wiltshire says, from a sedentary position, ''Aha—intentional hunting''. The intention is part of the definition of hunting, not a separate element. We cannot have unintentional hunting and the sooner that Opposition Members understand that and apply it to the part of the Bill where they appear to find confusion, the sooner they will find clarity, rather than confusion, in the Bill. I shall give way to the hon. Gentleman, but in the triumph of hope over expectation.

Mr James Gray (North Wiltshire, Conservative)

I do not know why the Minister has to reduce himself to cheap comments all the time. I welcome the clarification that he has just given us. He has, once again, made it plain that the offence under the Bill will be hunting with intention and that unintentional hunting will not be an offence. That is precisely the clarification that I sought. I am very grateful. Under Pepper v. Hart, the law courts will make great use of those remarks.

Mr George Stevenson (Stoke-on-Trent South, Labour)

Order. As patient as I am, my patience is running a little thin with some of the picky contributions and interventions. I do not think that they assist the debate at all. I urge hon. Members to control their enthusiasms rather more than they have heretofore.

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

Mr. Stevenson, I—

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)

One moment. Let me deal with the previous intervention first.

I shall try to obey your injunction to the letter, Mr. Stevenson. However, the hon. Member for North Wiltshire purported to feed my words back to me and misinterpreted them again. He said that ''unintentional hunting'' will not be caught, but there cannot be any such thing as unintentional hunting. That is my point.

Mr George Stevenson (Stoke-on-Trent South, Labour)

Order. I hesitate to say this, but it seems to me that in the course of controversial and heated debate, which this Bill of necessity will engender, there are bound to be misinterpretations and different interpretations. That is the essence of debate. I am trying to get hon. Members to understand that we must not react to different interpretations, as part of that debate, as seems increasingly to be happening in this Committee. That is what bothers me.

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

I accept that ruling entirely and shall do my best to be moderate even when I feel provoked. As I said, the point, which is germane to the amendment, is that a person cannot hunt unknowingly or unconsciously.

Mr Hugo Swire (East Devon, Conservative)

The Minister seems to be confused about our position on the amendment. He was not listening at the beginning of my small peroration, but I do not attach any blame to him for that. We do not support the amendment. We would rather keep the reference to section 1 and add section 4 as well. I hope that that clarifies our position.

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

That clarification is helpful.

Although I understand what the hon. Member for St. Ives is trying to achieve in the amendment, it would not achieve the end result that he seeks. At present, the Bill enables a person charged with an offence of hunting with dogs to rely on the defence that he

''reasonably believed that the hunting was registered, or exempt.''

As the hon. Gentleman said, the amendment would remove that defence against the section 1 offence of taking part in unlawful hunting and transfer it to the section 4 offences of knowingly permitting land or dogs to be used for unlawful hunting. Under the section 1 offence, it must be fair that a person who reasonably believed that the hunting they were

undertaking was registered or exempt would not be committing an offence because they would lack the necessary criminal intent. That is basic to what we put in legislation. There are no grounds—this may be at the heart of the amendment—for believing that the offence could be a loophole. It would be for the prosecuting authority and the courts to determine on the facts whether the defence was available. The courts frequently deal with the defence of not knowing what one was doing and not understanding what the law meant. They are experienced in examining that defence and deciding whether it is a try-on or someone genuinely believed that what they were doing was reasonable and within the law.

Mr Edward Garnier (Harborough, Conservative)

If someone is acquitted of a section 1 offence by virtue of the defence in clause 5, presumably someone accused of permitting the use of the land on which that innocent person was not hunting would also be acquitted under clause 4.

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

The hon. and learned Gentleman tempts me into speculation. I suppose that it would be possible for someone to undertake an activity that they thought was legal and for the landowner to know that it was an illegal activity, so I suppose there is a theoretical possibility that the landowner could be guilty whereas the person undertaking the hunting was not. I think that that is unlikely, but it would be theoretically possible because they are two separate offences.

Mr Rob Marris (Wolverhampton South West, Labour)

I suggest that my right hon. Friend has another think about that. If no offence is committed under section 1, a person cannot be charged under clause 4 with assisting with something that is not an offence.

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

I said that it would be theoretically possible, although in practice I do not believe that a court would convict on that basis. If someone had undertaken an activity, they could hardly have sought permission to undertake it if they did not know that it was illegal. The more I think about it, the less likely it seems that the situation could arise, so I think that the hon. and learned Member for Harborough is right and no offence would be committed under clause 4 if no offence had been committed under section 1. I am grateful to him for his tutorial. I hope that what I have said is correct; I shall check it.

As I said, I do not believe that the defence could be used as a loophole or an excuse for undertaking activities and pretending that they were not taking place under section 1. Also, there is no need to create a similar defence for clause 4 offences of knowingly permitting land or dogs to be used to commit an offence of unlawful hunting. If someone knowingly permits his property to be used for a criminal offence, he cannot then seek to defend himself on the grounds that he reasonably believed that no offence had been committed. That is why the word ''knowingly'' is in clause 4. It provides the defence that the hon. Member for St. Ives wants to ensure is there. I hope that I have reassured him that clause 4 meets his intention in the amendment, and I urge him not to press it.

Mr Andrew George (St Ives, Liberal Democrat)

There has been a great deal of discussion about the word ''intention''. It was not my intention when moving the amendment to provoke the lengthy soliloquy from the hon. Member for East Devon which he read with some aplomb. I listened carefully to the Minister's response. He accepts that we must protect landowners who need a defence when hunters are breaking a regulation and the landowners had not knowingly permitted that unlawful activity to take place on their land. Given that his measured response, which was helpful, is on the record, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.