Schedule 3 - Hunting with dogs: prohibition

Hunting Bill – in a Public Bill Committee at 10:15 am on 1st February 2001.

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Photo of Edward Garnier Edward Garnier Shadow Attorney General 10:15 am, 1st February 2001

I beg to move amendment No. 44, in page 19, line 32, leave out paragraph 3.

Paragraph 3 says:

``A person commits an offence if he knowingly permits a dog which belongs to him (within the meaning of paragraph 23) to be used in the course of the commission of an offence under paragraph 1.''

Paragraph 1 says:

``A person commits an offence if he hunts a wild mammal with a dog.''

On the first main day of proceedings in Committee, we discussed the necessity, or otherwise, of an express provision relating to the criminal intent of the offender under paragraph 1. The Minister told us that it was unnecessary to have a reference to criminal intent in that paragraph. However, paragraph 3 contains an express reference to knowledge. The offence is badly defined and such an approach is flawed.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

My hon. and learned Friend has started to explain that he thinks that the drafting is bad and has emphasised that we are discussing the issue of ``knowingly to permit.'' What would constitute ``unknowingly to permit''?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The awful thing is that I do not think that I can answer that, but hon. Members who follow the arguments of Deadline 2000—there may be one or two on the Government Benches—may be able to assist my hon. Friend. The Minister has candidly admitted that he has come to today's sitting armed with a copy of ``Archbold'', the well known textbook. Unfortunately, it is a rather elderly edition. He is a Minister of huge experience and grey before his years, but I am sure that his politics, under new Labour, do not reflect the colour of the cover of that great tome. I will leave it to him to answer my hon. Friend's question in due course, if he feels it appropriate.

I shall pursue one or two lines of thought to try to make progress in improving the Bill. The approach of paragraph 3 is flawed for a number of reasons. Although offences beyond that in paragraph 1 might be regarded as secondary offences, I suggest that they are primary offences, and as such go beyond the normal common law rules that relate to secondary parties. Common law has clearly established that someone who aids, abets, counsels or procures the commission of an offence by someone else is guilty of the like offence. There is no need for such provision.

While bearing in mind the elderly edition of ``Archbold'' on the Government Front Bench, I remind hon. Members of some of the points that my hon. Friend the Member for Gainsborough (Mr. Leigh) drew to our attention on Tuesday afternoon.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. I remind the hon. and learned Gentleman and the Committee that we debated the concept of ``knowing'' extensively at our previous sitting.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

You are perfectly right, Mr. O'Hara, but unfortunately I could not be present. [HON. MEMBERS: ``Ah.''] I know that Government Members much regretted my absence, as did I. I was going to remind the Committee of some of the points that my hon. Friend the Member for Gainsborough made in his excellent contribution on Tuesday afternoon, but not repeat them. I am not going to talk about the concept of knowledge, which has been discussed at length.

Photo of Alun Michael Alun Michael Labour/Co-operative, Cardiff South and Penarth

On a point of order, Mr. O'Hara. Is there a distinction between knowingly and unknowingly repeating debates?

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

I made my ruling and the hon. and learned Member for Harborough (Mr. Garnier) has responded appropriately. It is in order for him to remind us of our earlier debate, but not to reiterate it.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I will not remind the right hon. Member for Cardiff, South and Penarth (Mr. Michael) that he had an illustrious past as a member of the Government and the Cabinet. It is pleasing that he is here to address us today, and no doubt he will be trying to catch your eye, Mr. O'Hara, to remind us of his glorious past. Perhaps you will remind him of his inglorious future.

As the Minister will know—he has been reading his 1998 edition of ``Archbold'' all morning—someone who aids, abets, counsels or procures the commission of an offence by someone else is guilty of ``the like offence''. That is uncontroversial, and is stated in chapter 18, paragraph 4 of ``Archbold'', although I do not know whether the paragraph numbers are the same in the 2000 and 1998 editions. The distinction between joint principals and principals and secondary parties can be hard to draw, as ``Archbold'' says, but the words

``aid, abet, counsel or procure'' should be given their ordinary meaning if possible.

Participation by helping in a crime can take many forms, including keeping watch, that is tacit encouragement; and providing the means, that is providing dogs or the use of land or vehicles. Paragraph 21 of the Bill states:

``A reference to a person hunting a wild mammal with a dog includes, in particular, any case where—

(a) a person engages or participates in the pursuit of a wild mammal, and

(b) one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction).''

That leaves one utterly confused.

The mental element is an intention to help someone else, while realising that during the joint enterprise, the other person might commit a crime. That must be established. We should be concerned with how paragraph 3 coincides with the definition of ownership in paragraph 23, to which paragraph 3 specifically refers, and how it relates to the common law, as explained in either the 1998 or the 2000 edition of ``Archbold'', on participation by others in a crime committed by the principals.

I hope that I have the agreement of all on the Opposition Benches other than the hon. Member for Newbury (Mr. Rendel)—who, I believe, takes the view that the Bill should be passed as drafted in schedule 3 with no amendment; I hope that I have not misunderstood his position—in saying that all criminal offences that are to be established by the Bill should be clearly defined. The problem with paragraph 1, as bolstered by paragraph 3, and with paragraph 3, as defined by paragraph 23, is that the criminal offences are not so defined. I shall not repeat our discussion about exceptions, but I remind the Committee of it. Perhaps, in due course, we shall have an opportunity to discuss or amend paragraphs 7 to 11, where the exceptions are set out. My submission, which I made to Mrs. Roe some time ago, is that, as they stand, the offences are unclear. They can be defined only by looking at the exceptions. In any event, it is not clear what is meant by the word ``knowingly'' in paragraph 3.

For example, would a dog owner, who allows his dog to be used for a lawful activity, but where an offence is committed, be caught by the provision? It is unclear what is meant by the word ``commit''. Would the dog owner have to give active or express permission, or would mere failure to prevent the actions of the dog and/or those in charge of it—where it could be deemed to be in their power to do so—be regarded as the commission of an offence? How is anyone to know how to discharge the duty imposed by the word ``commit'' so as to avoid committing a crime? Paragraph 3 states:

``A person commits an offence if he knowingly permits a dog which belongs to him (within the meaning of paragraph 23) to be used in the course of the commission of an offence under paragraph 1.''

I have criticised—perhaps at length, but I hope not irrelevantly—the wording of paragraph 1, as have many of my hon. Friends. Those criticisms translate to paragraph 3. It is a question of imprecise definition.

In talking of imprecise definition, we should look at paragraph 23, which is expressly referred to in paragraph 3. The definition of a dog owner is in three parts. A person is a dog owner, for the purposes of paragraph 3, in so far as the dog belongs to him, if, not surprisingly, he owns it. One can own things in many ways, as the Minister will tell us. I do not want him to give a repeat performance of his Tuesday lecture on property law, or anything near it. However, he will know, as may others, that apart from being an interesting philosophical concept, it has caused lawyers in the chancery division and, indeed, lecturers in the law of property, considerable difficulty over the years. Baldly to state ``owns it'' is not sufficient to offer protection to someone who has a dog in his ambit, should he not wish to commit an offence.

The second definition of ownership, in so far as it refers to the expression

``a dog which belongs to''

a potential offender, is that he is in charge of it. This Committee is in charge of the Bill, for the purposes of our discussions, but it does not own it. It is possible for a group of people to be in charge of an object, because they have been placed in charge of it by statute or by the direction of others.

Photo of Alun Michael Alun Michael Labour/Co-operative, Cardiff South and Penarth 10:30 am, 1st February 2001

The hon. and learned Gentleman asked who is in charge of the Bill. The common phraseology is that the Minister is in charge of the Bill, even though the Bill is the property of the Committee while it is under consideration.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Unusually, the right hon. Gentleman makes a good point. The Minister is in charge of the Bill. However, we, as a collective body, are also in charge. He illustrates the difficulty of definition that will arise if the Bill becomes law in its unamended state. A person can be in charge of something in any number of ways without owning or controlling it. The Committee must point out defective drafting.

I appreciate, as I said on Tuesday, that by virtue of the arithmetic on the Committee, the likely result of a vote on the amendment will be unfavourable to my cause. I see the happy faces of the Bill's supporters staring at me—whether they are listening does not matter—[HON. MEMBERS: ``We are listening.''] I am flattered that they are listening and staring. The likely result does not inhibit or prevent me from advancing arguments that are critical of the Bill—[Interruption.] Does the hon. Member for Lewisham, East (Ms Prentice) or another hon. Member want to intervene?

Mr. A. J. Beith

(Berwick-upon-Tweed): Perhaps it is because the hon. and learned Gentleman is a lawyer that he is concerned about the imprecision of the Bill. I am worried about its precision. The more I read, the more I am convinced that when a person takes his own or someone else's dog for a walk, he is liable to be prosecuted if the dog chases a rabbit. The very breadth of the clause, not its imprecision, worries me.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The width of paragraph 3 takes it into the realms of imprecision. It catches, wittingly or unwittingly, the innocent people whom the right hon. Gentleman mentioned.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The canard offered by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) about dogs chasing rabbits when there is no intent to hunt by the person involved has been debated on many occasions. The suggestion misleads those who might read our debates in Hansard. I have made it clear that an intention is required. We will prosecute people, not dogs, and only if they break the criminal law.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The Minister has not dealt with the point raised by my temporary right hon. Friend.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I invite the hon. and learned Gentleman to consider a case where the person walking a dog had previously engaged in legal country sports. The presumption could be made that he intended the dog to chase the rabbit. He may then face prosecution. He may be able to prove his innocence in court but he would face the rigours of a prosecution.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The right hon. Gentleman is right. We will discuss those matters again when we debate amendment No. 50, which deals with the burden of proof. It will be no comfort to the innocent defendant that an appeal court in this country, or the European Court of Human Rights, acquits him after he has been fined and has had his vehicle, property or dog confiscated. The dog may even have been destroyed.

The definition of ``dog owner'' in paragraph 23 is so wide that it would catch people who are neither with nor in control of the dog at the time of the alleged offence. It would be an absurdity for such individuals to be prosecuted. The Minister says, in good faith, that such prosecutions will not take place. Indeed they will not under the Crown Prosecution Service; I doubt that the police will want to bring such offences to its attention. However, I have yet to receive a satisfactory answer from the Minister or from any Committee member who takes an interest in the League Against Cruel Sports, the International Fund for Animal Welfare, or any other politico animal welfare rights organisation, about whether individuals or organisations with an agenda would bring prosecutions to test the law, as the Bill will allegedly define it.

The Minister would not be able to do anything to prevent that. Although the Law Officers or the Crown Prosecution Service could take over such private prosecutions and attempt to stop them, that would not prevent the initiating of such prosecutions. To prosecute the sorts of individuals about whom the right hon. Gentleman and I have been talking would be deeply upsetting for them, and an absurdity to the rest of us.

The offences under paragraphs 1 and 3 cover situations in which, in practice, it would be unreasonable to prosecute, but that would not prevent the prosecutions from being brought. Furthermore, the definition covers both the owner and the person in control or charge of the dog, who often might not be the same person. I use the word ``person'' to refer both to human beings and to non-human owners. Paragraph 6(1) states:

``This paragraph applies where an offence under paragraph 2, 3 or 4 is committed by a body corporate.''

A body corporate is, of course, a person at law. Would the intention be to prosecute both the owner and the person in charge of the dog when an offence has been committed? Perhaps Members who take a different view from me will be able to answer that question.

My main concern is that, although schedule 3 reflects the intention expressed by the Committee of the whole House a fortnight ago, many of those who voted for option 3 might not have studied the wording with the detailed attention to examination with which the Committee is charged. They were, perhaps, thinking in broad terms, along the lines that they do not like hunting and think it should be brought to a halt, but I suggest that they had not considered some of the problems that will arise as the Committee examines the details.

It is neither here nor there whether the Government take a neutral stance. They are the custodians of the legislation, and they must bring it into law—if it is to become law—in a way that is understandable to those who are liable to be prosecuted and fined and have their dogs taken away and killed. The Act must also be understandable to the courts, so that they can reach finite and sensible judgments; to the prosecuting authorities that will have to sift the evidence and consider whether it is in the public interest that prosecutions brought by public authorities should be pursued; and to the activists who will wish to test the law beyond destruction. Despite the Government's best intentions, the Bill, and in particular paragraphs 3 and 23, do not meet that test. The provisions will allow the prosecution of as many people as possible, without advancing the cause of animal welfare by one jot or tittle.

As the Minister has frequently said, the Bill is supposed to attack people and not dogs. However, by throwing his net over the English and Welsh public—the Bill extends only to England and Wales—he will be, sadly and I hope unwittingly, the author of a draconian and grossly unjust piece of legislation.

Mr. Beith rose—

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. Before we proceed, I draw the Committee's attention to the fact that the mover of the amendment spoke extensively on paragraph 23. As there are no amendments tabled to it, and as it is relevant to paragraph 3, it is in order that it is mentioned in our discussions. Amendments that are eligible for selection might in future be tabled to paragraph 23, but I may rule that they be moved formally. I advise Committee members that now is their opportunity to debate the terms of paragraph 23, should they wish.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I am grateful for that guidance, Mr. O'Hara. I am not sure whether I will table amendments to paragraph 23, because it seems to provide a frighteningly comprehensive definition. It is brought into play by the words that the amendment would remove.

As I understand it, the Minister's task is to ensure that the House has the opportunity to give effect to its decision in choosing schedule 3 over the other schedules: the decision to ban foxhunting and hare coursing. Part of his responsibility must be to ensure that the end result is not a ban on all sorts of other things that the House did not think it was banning. That is why such paragraphs have to be handled with considerable care. They, along with other parts of the Bill, appear to ban lots of activities, sometimes for stated purposes that have nothing to do with the objective of schedule 3. For example, we were told that sending a dog underground is to be banned because it is cruel to the dog. That is nothing to do with hon. Members' intention when they voted for a ban on foxhunting and hare coursing.

The amendment would remove words that are much more general than, for example, those in paragraph 4. Although I have yet to examine that paragraph sufficiently to be sure that it is perfectly drafted, it clearly concerns a hare coursing event. I am not in favour of it, but I understand what it means. The words that we wish to remove are too broad in allowing people to be prosecuted for knowingly permitting something to happen, when they were merely walking or in charge of a dog.

Photo of Mr David Rendel Mr David Rendel Liberal Democrat, Newbury

I am a little surprised by my right hon. Friend saying that the use of dogs underground and the welfare implications for animals in general, whether that be of the dog or of the animal that it is chasing, are nothing to do with the reasons why people voted for a ban on hunting. I thought that, in the Committee of the whole House, we were arguing about the totality of the Bill's animal welfare implications. Part of that totality concerns both the animal doing the chasing and the animal being chased underground.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I invite my hon. Friend to comb the Hansard report of the Committee of the whole House and find a reference to any hon. Member who thought that the Bill should ban a dog going underground on the basis of the dog's welfare. I look forward to the results of his research. I do not think that the dog's welfare was in anyone's mind. The Bill will ban things that nobody—or only a few—thought that they were banning when they cast their vote for schedule 3.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

As the right hon. Gentleman is pursuing the point about dogs underground, he should know that Deadline 2000 has told us that, as part of its consideration of the policy behind the schedule, it is concerned about that.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I am fascinated by that intervention. The Minister is like ``Peake's Commentary on the Bible''—if one wants to know what Deadline 2000 means, he will provide an interpretation. However, I am straying from my purpose. I simply quoted an example of the Committee of the whole House not having in mind some of the bans that would result. I want to give a more concrete example of the problem.

Photo of Mr Colin Pickthall Mr Colin Pickthall Labour, West Lancashire

How does the right hon. Gentleman come to understand the mind of the House? Is it not rather insulting to assume that hon. Members had either not read the Bill, which is fairly short and clear, or not understood what they read?

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed 10:45 am, 1st February 2001

I will quote an example. One of my hon. Friends has written to another of my hon. Friends to express concerns about the Bill. That hon. Friend was a strong supporter of the ban on foxhunting but is raising questions about the implications of provisions such as that in paragraph 3, which go beyond what my hon. Friend had understood the Bill to mean. I was told that in confidence, so I will not give the names of the hon. Members concerned, but my hon. Friend the Member for Newbury is aware of that correspondence.

Mr. John Gummer (Suffolk, Coastal) rose—

Mr. Rendel rose—

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I should give way to my hon. Friend because I mentioned him.

Photo of Mr David Rendel Mr David Rendel Liberal Democrat, Newbury

I remind my right hon. Friend that that correspondence had nothing to do with dogs underground.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I am being led astray. The example was of the Bill going wider than right hon. and hon. Members thought.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

No, I will not give way now because I need to make progress. I am determined to cite my example. It is fatal to give an illustration, because one draws in hon. Members of every persuasion.

As part of his duties, a gamekeeper goes in pursuit of rodents with a dog, as he is permitted to do. If the dog then chases a rabbit, someone might presume that the gamekeeper is willing that his dog should pursue rabbits. As the hon. and learned Member for Harborough (Mr. Garnier) mentioned earlier, someone might bring a private prosecution—the police might even prosecute—in the knowledge that the gamekeeper has an objective of keeping down vermin and controlling the number of foxes. Indeed, the dog might chase a fox, although that is less likely because the gamekeeper would probably have taken with him a small terrier.

The conclusion might be drawn that the gamekeeper had an interest in pursuing wild mammals and not just rodents in order to clear his woodlands of predators or to keep them down to a reasonable number. Therefore, he would be exposed to prosecution. The prosecution would try to show that he had knowingly allowed his dog to pursue wild animals. When he advanced the defence that his dog was properly being used in pursuit of rodents, the argument would be, ``No, that was just a pretext. The gamekeeper was pretending that he was in pursuit of rodents so that he could go after rabbits with his dog.'' In past game prosecutions, people in pursuit of rabbits have been prosecuted. No one was bothered about the loss of one or two rabbits, but there was a fear that the person concerned had taken the dog in pursuit of a prohibited species.

Photo of Michael Foster Michael Foster Labour, Worcester

Will the right hon. Gentleman tell the Committee which rodents the gamekeeper is trying to control with his terrier?

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

He might wish to control rats, either for normal gamekeeping purposes or simply because they were a nuisance. What does an estate owner do if he finds that his farm buildings are full of rats? He sends for the gamekeeper and asks him to deal with it, and the gamekeeper takes the dogs out to catch the rats. That is normal estate management practice. However, it would be easy for a prosecuting body—private or public—to presume ill intent and then seek to prove it.

The gamekeeper may get off, if he proves to the satisfaction of the court that his purpose was as he stated, but he will have had to go through the trauma of a prosecution. Some hon. Members, including the Minister, are treating the matter lightly and do not seem to understand what it is like for someone whose job may be at stake to be prosecuted and brought before a court.

Photo of Michael Foster Michael Foster Labour, Worcester

How likely is it that a dog that a gamekeeper takes to a barn full of rats would pursue a rabbit?

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

It is very likely. It is almost certain that the farm building will be some distance from the gamekeeper's cottage and probably on the other side of the estate. As he walked the dog across the estate, it would be perfectly normal for it to chase a rabbit if it saw one—indeed, difficult to prevent. It would be very odd for a gamekeeper to walk a dog that needed exercise around the estate on a leash.

That is one of many examples of how people could be affected by the legislation and illustrates that the Bill bans more activities than I believe hon. Members thought they were banning when they voted for a ban on foxhunting and hare coursing.

Mr. Garnier rose—

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I first noticed the hon. and learned Gentleman on the Opposition Front Bench.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The right hon. Gentleman's example of a gamekeeper being required by his employer to deal with a rat problem is made all the worse when considering the totality of schedule 3. An ill motivated prosecutor must merely say that a set of circumstances had occurred for the burden of disproving guilt to rest firmly on the gamekeeper—or his employer, if he owns the dog that is used by the keeper. For example, paragraph 8 states:

``(1) It is a defence for a person charged with an offence under paragraph 1 to prove that--(a) the conduct to which the charge relates consisted of hunting rodents''.

Why should the gamekeeper to which the right hon. Gentleman referred have the burden of proving his innocence?

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

Absolutely; I agree entirely with the hon. and learned Gentleman on that point. If the dog had put up a rabbit in the process, the gamekeeper's task of proving his innocence would be even more difficult.

Photo of David Lepper David Lepper Labour/Co-operative, Brighton, Pavilion

The right hon. Gentleman has referred several times to what might or might not have been in the minds of hon. Members when they voted in the Committee of the whole House two weeks ago. He asked for references from Hansard and I refer him to Second Reading on 20 December at column 423, where my hon. Friend the Member for City of Durham (Mr. Steinberg) referred to terrier work. I suggest that anyone who heard or read his graphic account of terrier work would have had his speech in mind throughout the debate in the Committee of the whole House.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I did read that speech, but I shall refresh my memory of it. I was particularly interested because people from the Morpeth hunt kennels in my constituency invited the hon. Member for City of Durham to visit them to see how they conduct their work. He declined the invitation. It would have been better if he had informed himself more fully of the way in which hunting is practised in Northumberland. I still hope that he will think again about the invitation because he might find it interesting to talk to people whose livelihood depends on hunting.

We are told that, if the ban takes effect, hounds will be quartered with all sorts of people and found good homes. However, I foresee people trying to take a hound for a walk, as they might a spaniel or labrador. What will happen if that lovely hound, which they took into their home following a ban on hunting, scents a fox and starts to chase it? People who thought that they were assisting the process of banning hunting by taking a hound into their home could end up being prosecuted for being in charge of a hound that chases a fox in the countryside. I hope that that day does not come.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I am concerned because we are asking Parliament to legislate against the natural activities of animals. Animals naturally behave in particular ways. I heard the discussions between the right hon. Member for Berwick-upon-Tweed and Government Members about what the Committee of the whole House thought that it was voting on. It probably does not matter much what we think, but we must recognise that, even though some of us feel that the proposed legislation—which has been passed in principle—is by its nature unworkable and unfair, it is this Committee's job to ensure that it is becomes as workable and fair as possible. We must do our job, and that, Mr. O'Hara, is what you are presiding over.

I have listened on several occasions to the Minister's answers to questions from our side of the argument. We have asked whether certain things will possibly or probably happen if the proposed legislation were enacted unamended, and the Minister has replied, ``Yes, they might, but in the end the court will decide. If the person in question has behaved properly, he will be found innocent. The prosecution must prove its case.'' The problem, however, is that that is not true. Given the way in which the provision is worded, it is the defendant who must prove his case. Because it is difficult to deal with such matters in reality, the Government have had to include a series of defences. Having said that, I begin to wonder whether the provision is the work not of the Government but of an organisation of which I am unaware, but about which I shall soon learn—Stop 2000 or something of that sort. I shall give way to the Minister, because I know that he wants to ensure that I do not say something unrepresentative—[Interruption.]

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. Only the Minister should be speaking.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office

The right hon. Gentleman said that I discussed likelihood and possibility, but in fact I distinguished between the two. Although many things are possible, they remain unlikely. The frivolous example to which he referred might occur, but it is very unlikely. The Crown Prosecution Service must consider all circumstances, including any defence that might be made, because the likelihood of securing a conviction must be established before deciding to prosecute.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I do not think that what I said excluded that point. However, I am perfectly prepared specifically to include it, lest anyone should think that I am arguing about matters that need no discussion.

Whatever the Committee of the whole House may have thought, others in this country who favour a ban on hunting with dogs for the most part do so in a generalised way. Parliament has decided on the matter in principle, and such people look to it to establish legislation that works. However, the Government have discovered that making that legislation work is much more difficult than they thought. They have also discovered that if it is too broad, various people whom they did not have in mind will get caught up. Perfectly sensibly, defences that could be offered in explaining why a dog under one's control appeared to hunt at a particular place and time are therefore taken into account. However, the difficulty is that there is no doubt that the onus would be on the defendant to prove why his terrier, for example, took to its heels in its natural way and chased a rabbit successfully. I find that perfectly acceptable because that is what terriers do and that is the nature of the predatory chain, but I find the following peculiar.

I did not believe that when elected to Parliament I would ever be asked to discuss a law which, it seems, intends to stop animals from doing what they always do. Terriers chase rabbits; it is one of those things. Perhaps there is some animal welfare reason why they should not do so, but it does not have anything to do with morality, nor with the way that nature intended. With our great attitude to justice in this new century, we are to suggest that they should not do so and that in some way or other we must stop them. So we place the liability on the owner of the terrier, who is to be told that if he goes out with that dog, albeit for a perfectly reasonable purpose such as getting rid of rats, and it mistakes the quarry, he is responsible and must prove to the court that such action was an accident—that he went out to do something else, but the terrier took to its heels and he was unable to stop it.

The Government should take such shifting of the burden of proof seriously because it is fundamental. In the great scheme of things, it cannot be considered the most serious offence to permit a terrier to do what a terrier has always done: chase rabbits. I cannot believe that however much one hates hunting one can find that a terribly serious offence. We would not dream of changing the burden of proof in such a way in any other circumstance. I do not blame the Government for that change. It has occurred because they have been seeking to build around what would otherwise be seen by everyone as an intolerable invasion of human liberty enough protection to ensure that people do not go to the stake over the issue. I am not sure that that works. The change achieves the opposite; it creates a thoroughly unacceptable situation.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 11:00 am, 1st February 2001

The right hon. Gentleman is advancing an argument which I suspect conflicts with one that he may have advanced on a previous occasion. I believe that he was a member of the Government who supported the Protection of Badgers Act 1992, which protected badgers from, among other things, terriers. He is concerned about legislating against the instincts of animals. How does this Bill differ from the legislation that he supported as a member of the Government?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I thank the Minister for so eloquently reading out the note passed to him to remind us of the Protection of Badgers Bill. In case people do not recognise what happens in such circumstances, I shall speak about the Protection of Badgers Bill—[Interruption.] It is all very well for the hon. Member for Basildon (Angela Smith), the Minister's Parliamentary Private Secretary to speak on the issue from a sedentary position. Let me put the matter clearly.

The Protection of Badgers Bill reminds us that many on this side of the House have a long record of fighting hard on animal welfare issues. I have always believed that the way in which badgers were dug out and the other things that happened to them were totally unacceptable. Not only was I a member of the Government at the time; I supported the Bill with enthusiasm. The circumstances envisaged in that Act are sufficiently clearly defined, and the other arrangements are so placed, that it would be almost impossible for someone who was not bent on badger baiting to be found in such circumstances. That is the difference.

It is all very well for members of the Committee to look up such references. We are not talking not about people going out at night with lights and the like, but about me, or any other member of the Committee, going for a walk with a dog and the dog chasing a rabbit—something perfectly normal that ordinary people do. No one can mistake my going out with a dog for my desiring to dig up badgers. The Minister's point, although eloquently put and well researched, is wrong. Large numbers of people who would never have been concerned with the Bill that related to badgers are being drawn into a situation into which they have no need to be drawn. Why is that? I believe that the Government have acted with the best of intentions, but they have shown that they depend far too much on the advice of people who are not unbiased viewers of the issue.

When the Government gave the House a series of possibilities on how to handle the issue of hunting, it was perfectly right for them to ensure that those possibilities commended themselves to, as it were, the Bill's promoters. However, in seeking to implement one of those possibilities, it is the Government's duty to be guided not by those whose single-minded intention is to deliver one particular result, but by the wider public interest of ensuring that, in passing a Bill to ban hunting, they do not inadvertently stretch it beyond what they ever intended.

I hope that the Government will no longer quote in aid outside organisations to the effect that they introduced the Bill because those organisations thought that it would be a good idea. It is perfectly reasonable to say that the basic proposal that has been decided is one that such an organisation supports, but making the Bill work is the responsibility of the Government, not of Deadline 2000 or any other organisation.

The Government should not make criminals of people who clearly are not criminals. In the previous debate, it was suggested that I was in grave danger of being brought up in court if I did not put up a notice saying that I banned hunting on my land. It seems that I will also be in such danger when I walk my dog. I do not understand why the Government do not see how ridiculous they make themselves by trying to legislate against things that animals do naturally.

Interestingly, during a previous sitting, that long-standing opponent of hunting, the hon. Member for Worcester (Mr. Foster), intervened on the right hon. Member for Berwick-upon-Tweed to ask whether it is likely that rabbits would be present in areas where rats might be chased. The fact that he had to ask that question brings me back to my problem with the hon. Gentleman—

Photo of Michael Foster Michael Foster Labour, Worcester

Will the right hon. Gentleman give way?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I will finish the allegation so that the hon. Gentleman may make his riposte with greater knowledge.

The fact that he does not know that the circumstance about which he asked is not only likely to arise, but likely to arise on many occasions, leads many Conservative Members to believe that many of his views are entirely theoretical and unconnected with the countryside. What annoys us is the inability to understand that we are talking about people's livelihoods.

Photo of Michael Foster Michael Foster Labour, Worcester

It would be useful for the right hon. Gentleman to clarify his remarks. My intervention on the right hon. Member for Berwick-upon-Tweed specifically concerned hunting rats in a barn. As for the question of whether I know about the countryside, does the right hon. Member for Suffolk, Coastal (Mr. Gummer) know for how many years I lived in the countryside, having been born and brought up there?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I am talking not about being born and brought up in the countryside, but about knowing about it, and I shall judge that on the evidence of the hon. Gentleman's speeches. It is difficult to believe that someone knows much about the countryside if he has to ask whether there might be rabbits near barns containing rats.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

In the barn. The hon. Gentleman shows a lack of understanding of large areas of the countryside.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. I am listening carefully to the right hon. Gentleman, who is treading a thin line. If he is talking about behaviour that comes naturally to animals such as dogs, he is within the terms of paragraph 3, but if he talks about knowledge of the countryside, he is in danger of making a Second Reading speech on the Bill in general.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I have, indeed, been led astray, although delightfully and pleasantly, by the hon. Member for Worcester, and I apologise. I return to the behaviour that is natural to dogs, if not to human beings.

The natural behaviour of dogs is to chase other animals. Human beings have organised that natural behaviour; that is what hunting is. The Bill will prevent them from doing so in an organised way. I cannot believe that it is sensible or workable not only to stop that organised behaviour, but to impose upon people the duty of ensuring that their dogs do not hunt, except those species and in those circumstances that the law allows. That will impose an intolerable burden on the owner of a dog. To do so in a schedule that makes it necessary for the owner of the dog to prove that he did not intend to hunt is a fundamental invasion of liberty and is wholly different from the Government's position. The Government came to power with many high-sounding phrases about extending people's freedom, not restricting it.

Photo of Mrs Jackie Lawrence Mrs Jackie Lawrence Labour, Preseli Pembrokeshire

In terms of natural behaviour, does the right hon. Gentleman recognise that sheepdogs have a natural inclination to chase sheep? It is incumbent on people who own sheepdogs as pets to train their animals or take measures to prevent them from chasing sheep. Does not the same apply to terriers, which are highly trainable dogs? If they can be trained to go after specific species when they are hunting, they can be similarly trained to ignore specific species if it is an offence to chase them.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

The hon. Lady is now suggesting that the Bill covers the compulsory training of terriers not to chase some animals, but to chase other animals. That is certainly not something that the Committee of the whole House decided on.

Photo of Mrs Jackie Lawrence Mrs Jackie Lawrence Labour, Preseli Pembrokeshire

I own a terrier. I recognise that terriers are sparky, intelligent dogs with natural tendencies, but part of my duty as a responsible owner is to ensure that my terrier does nothing that is a nuisance to society as a whole or that causes cruelty.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

The hon. Lady referred to a nuisance to society and causing cruelty. She must understand that when animals kill or chase other animals, they do not cause cruelty. That is what animals do. We cannot impose on animals the moral standards of human beings. That is like arguing that animals love their owners. They do not; love is an emotion that only human beings can feel. We must be sensible about this.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

Has my right hon. Friend seen reports in the public prints in the past few days about the outrageous behaviour of cats? What is he going to do about organised gangs of cats that roam the countryside, killing at will? Can they, like the poor unfortunate terrier in the possession of the hon. Member for Preseli Pembrokeshire (Mrs. Lawrence), be disciplined not to hunt?

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South 11:15 am, 1st February 2001

Order. The agents of these heinous offences are specifically defined as dogs, not cats.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I will resist the temptation that was so elegantly dangled before me by my hon. Friend, but I think that it is within the rules of the debate to make my point by drawing a brief parallel. In effect, the hon. Member for Preseli Pembrokeshire is suggesting that we should legislate to insist that owners prevent their cats from chasing birds. I am not discussing her suggestion; I am merely drawing an exact parallel that has exactly the same faults. It imputes to animals human morality and is in that sense anthropomorphic; it suggests that animals can be treated as humans; and it places an unacceptable demand on human beings. I am not prepared to tell my Aunt Maude—again, I am drawing a parallel—that she must not keep a cat unless she can prevent it from chasing birds.

Photo of Alan Beith Alan Beith Liberal Democrat, Berwick-upon-Tweed

I think that I can see a way forward, Mr. O'Hara. Could the Committee observe a test in which the terrier of the hon. Member for Preseli Pembrokeshire must distinguish between a weasel and a stoat, or a rabbit and a rat, and avoid attacking the prohibited species?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

That would be an unfair test, because we must first decide whether the terrier was infallible, or whether it was allowed the occasional mistake. The problem with the schedule is that it does not allow for an occasional mistake.

Photo of Michael Foster Michael Foster Labour, Worcester

On a point of order, Mr. O'Hara. According to your reading of the Bill, does it refer to the intention of people, or of cats or dogs?

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

I am listening carefully to the contribution of the right hon. Member for Suffolk, Coastal, and it is in order. Indeed, it is highly relevant, given that paragraph 3 refers to an owner who permits his dog to hunt wild mammals. Natural tendencies that might be beyond an owner's control are a legitimate subject for debate, whether or not one agrees with the right hon. Gentleman's view.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I thank you, Mr. O'Hara. As the hon. Member for Preseli Pembrokeshire suggested in her intervention, it is a fact that dogs chase rabbits. She also said that it is our responsibility to ensure that our dogs do not chase rabbits. If that is the Bill's intention, it greatly exceeds anything that was suggested in the Committee of the whole House. That is not a hidden agenda; it is an enclosed and utterly unknown agenda. Yet even if that is not the Bill's purpose, there is nevertheless the implication that, if I take my dog, however well trained, for a walk, and it chases a prohibited species and wins—which is, after all, why it bothered to do it—I have to prove that I did not mean it to happen and did not take it on the walk for that purpose.

I am still worried about the nexus of issues around knowing and intent.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Which, I remind the right hon. Gentleman, have already been debated.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Indeed, but they have a knock-on effect on the matter under discussion. It is perfectly possible for someone to take a dog for a walk with the dual purpose of intending it to chase both rats and rabbits. However, even if he proves that he had intended to go to chase rats, he has to show that that was his sole purpose. Two different concepts are involved. He could pretend that he intended the dog to chase rats, while really intending it to chase rabbits, or that he did not mind which animal it chased, while being prepared for it to chase both. It is pretty ludicrous to make that distinction. If a person could have a dual purpose, it would be extremely difficult to prove that he had a single purpose, as the schedule requires.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

My right hon. Friend has reminded me of the civil law in relation to the concept of malice which applies in defamation law, of which I know a little. For malice to be proved against a defendant in a defamation case, the burden is on the plaintiff—who corresponds to the prosecutor in a criminal case—to prove that the malicious motive with which the defendant published the defamatory material was his sole or predominant motive. Paragraph 1 represents a complete reversal of that position, whereby the prosecutor does not have to prove that that is the sole or dominant motive, but merely has to set out the facts. As my right hon. Friend correctly pointed out, it is the exceptions that require the defendant to get himself off the hook.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

If my hon. and learned Friend will excuse me, I see that as the central point, but would he not agree that one must go further than that? In this case, malice has to be proved to be predominant, but it could be a subservient intention. One could be mainly going to get the rats, but be willing to allow, and not stop, the chasing of rabbits.

We have established that the provision puts the Government in a difficult position. It reverses the burden of proof for people doing something that they do so widely and so generally that it does not in any way parallel the legislation on badgers, with an animal that normally, as part of its everyday life, does something that the Bill is supposed to stop.

Moreover, it introduces an utterly peculiar concept. It suggests that there is something wrong in the animal's activity that has to be changed, tamed and altered. If a human being teaches a bear to dance, that is offensive because bears do not naturally dance. It makes a mockery of one of God's creatures, which is intolerable. If a human being allows a dog to chase a rabbit, it is not a mockery of God's creatures, but an acceptance of the creature that God made.

We are considering passing a law that says that ownership of an animal requires the owner to make it do something that it does not do naturally; that is, to refrain from chasing rabbits. In doing that, we impose our morality on an animal.

Photo of Ms Debra Shipley Ms Debra Shipley Labour, Stourbridge

What a load of rubbish. Is the right hon. Gentleman saying that God made foxes so that dogs could chase them and dogs so that they could chase foxes?

Mr. Gummer rose—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Two o'clock.