Schedule 3 - Hunting with Dogs: Prohibition

Hunting Bill – in a Public Bill Committee at 2:00 pm on 1st February 2001.

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Amendment proposed [this day]: No. 44, in page 19, line 32, leave out paragraph 3.

Question again proposed, That the amendment be made.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

When we adjourned, the hon. Member for Stourbridge (Ms Shipley) had just entered the Room, heard a few of my sentences and said that they were rubbish. I shall not repeat them, because I would be in difficulty with you, Mr. O'Hara, if I were to explain to her the gravamen of the argument.

I was arguing that we are discussing the natural activities of dogs. The hon. Lady did not hear—I am sure that she would have been surprised if she had been here so to do—that one of her hon. Friends had suggested that it was incumbent on the owners of dogs to ensure that their dogs were able to distinguish between rats and rabbits and to run after the one but not the other. I was led into that germane discussion in response to her hon. Friend the Member for Preseli Pembrokeshire (Mrs. Lawrence), with whom she can speak later. If it is rubbish, the hon. Lady must argue with her hon. Friend the Member for Preseli Pembrokeshire, who suggested, oddly, that the Bill is concerned not with hunting but with the training of dogs.

Photo of Mr Ivan Henderson Mr Ivan Henderson Labour, Harwich

Recently in my constituency, there was an incident involving a swan and some cygnets on a pond—the right hon. Gentleman knows about ponds. A dog, whose owner did not have it on a lead, went after one of the cygnets and killed it. Is the right hon. Gentleman saying that dog owners have no responsibility when walking their dogs in public for their dogs chasing, attacking and killing?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

First, the hon. Gentleman referred to walking dogs in public. We are talking specifically about walking dogs on our own and neighbouring land, but particularly on our own land. I do not know the hon. Gentleman's constituency intimately, but I suspect that the person concerned was walking the dog in public and was not on his own land. Secondly, it sounds as though the incident was in a park where responsibility for a dog is different from that in open countryside that is owned by oneself or someone else. Dogs chase rabbits in a way that they do not chase cygnets. However, the hon. Gentleman has reminded the Committee that nature is red in tooth and claw. No decision by the House will change the nature of nature.

During the break, Mr. O'Hara, you will be pleased to know that I was reconsidering some of my comments this morning. I have become even more convinced of their validity and I shall explain precisely why to the Minister. The Minister need not smile, because I can deal with a serious issue in a reasonably light-hearted way—it would be boring to do otherwise—without diminishing the seriousness of it.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I want to remain in my serious mode for a moment; my hon. and learned Friend sometimes tempts me to levity.

We are discussing a serious issue: the nature of our moral responsibility.

Human beings are moral creatures and should be driven by moral considerations. Animals are not moral creatures and cannot be driven by moral considerations. We are dealing with the interrelationship between a moral creature and a creature that cannot be moral. It is proper to lay on moral creatures moral requirements, but it is also necessary to recognise how far those requirements—echoing your impartial comments, Mr. O'Hara—can practically be carried out in the circumstances that we are discussing. The issue is not whether we think that it is a good idea for dogs to chase rabbits, or whether we try to make a moral distinction between dogs chasing rabbits and rats, but the position in which the human being finds himself in such circumstances.

I admit to the Committee that I have a problem with the human moral distinction between rats and rabbits. The following example is taken, not from the expert advice that my hon. Friend the Member for Gainsborough (Mr. Leigh) is so often able to quote, but from the more familiar ``Just William'' stories. William, you will remember, is a man of considerable sagacity—aged about 12 years—of whom I am particularly fond as a mentor. He discusses the problem of why the lady down the road is a bird fancier and not a rat fancier. You will see immediately the relevance to what we are discussing, Mr. O'Hara.

William is fed up with bird baths, bird fanciers' clubs and so on and sets up a rat sanctuary with a rat bath and a rat table, and defends them. He does so in order to argue that it is difficult to make a moral distinction between rats and birds. I find the same problem in distinguishing between rats and rabbits. It is difficult to see why it is morally acceptable for a terrier to chase rats and morally unacceptable for it to chase rabbits. For a human being to allow—or indeed encourage—a terrier to chase a rat is evidently perfectly all right, as long as it is on one's own land and not underground. Those are two other issues that leave me with a problem. Why morality should be restricted to one's own land and above ground is not something that Holy Church has so far considered. I am thinking of asking the new cardinal whether he could instigate a consideration of the morality of chasing a rat above but not below ground. What biblical, theological or ecclesiological reason is there for that?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The Bishop of Leicester has let it be known that if the Bill arrives in the other place, he will vote against the total ban. He will be able to speak for himself, but as I understand it, he sees no moral basis for the Bill at all. He also identifies a huge potential for causing dissension and problems between his congregation in the city of Leicester and those who live in the surrounding rural areas.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I have, from time to time, had some hard things to say about bishops of the Church of England, but it sounds as though this bishop is making a significant point. Nevertheless, it is odd that we are making moral statements that no church professionally concerned with such matters has so far made. The moral distinction between chasing rabbits and rats is one I find difficult, and that between chasing rats on one's own land as against on someone else's evades me.

We are imposing on human beings a morality that all indigenous moral judges do not support. No church in Britain teaches that it is wrong to hunt as a matter of faith and morals. There is certainly no church that teaches that it is wrong to allow an animal to behave naturally. We therefore confront the huge problem of the House of Commons deciding on morality. I have always disliked such situations, and it is a matter of public record that, on a number of issues of morality, I have voted for what is known as the liberal side. It might surprise some of my hon. Friends to discover that I believe there to be a distinction between morality and crime. We are proposing to criminalise an action that we are claiming is immoral when neither the Catholic Church nor the Church of England agrees. I have some difficulty with that.

As I understand the argument of the hon. Member for Preseli Pembrokeshire, there would be an implied need for me to teach my dog the difference between chasing a rat and chasing a rabbit; that would be problematic, given that I do not know the difference myself. One cannot impart morality to children unless one believes in it. Although I know the difference between a rat and a rabbit, I do not understand the moral distinction between chasing the two. That is an important point, given that some people appear not to know the difference between the two species. Understanding that difference does not imply acceptance of a moral distinction between chasing the two species, however. What is the moral difference between allowing a terrier to chase a rat and to chase a rabbit? I certainly do not know the moral difference between allowing a terrier to chase such an animal on one's own land and on someone else's.

I do not want to repeat an earlier point, but I must return to the egalitarian issue. My terrier is a deprived terrier because the land over which it would be allowed to hunt is significantly smaller than that belonging to the Duke of Buccleuch. One curious immorality of a Bill presented by this egalitarian Government is that, if it is enacted, the Duke's terriers will be clearly advantaged.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

It is clear that rabbits and foxes are not moral creatures and that human beings are. While wearing his ecclesiastical hat, will the right hon. Gentleman pronounce on the morality of the master of the Holcombe hunt, in east Lancashire? He said that if the Bill is enacted, he will shoot his hounds. Where is the morality in that?

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

Order. Before the right hon. Gentleman proceeds, I should point out that, although I have complimented him on his treading of the narrow line of relevance, he is perhaps being led astray by interventions such as that. He is now discussing matters that are beyond the bounds of paragraph 3 and the amendment that would remove it. Given that he is perfectly capable of coming back into order, I ask him to do so.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Thank you, Mr. O'Hara. I shall try to keep to order without giving the impression that I am avoiding interventions.

The schedule would require us to control the dogs with which we walk in such a way that they choose their game carefully and know the boundaries of ownership of the land over which we walk. We would also have to defend our actions in court by proving that we were about something other than hunting. As I have said—you have made it clear, Mr. O'Hara, that this is entirely germane—we are dealing with the animal's propensity to chase.

The morality lies in the human being, not the animal, for it has no moral being, but is merely the creature of nature. That is the major distinction between man and animals. We are all animals, but we are a different kind because we have a moral propensity, which, many would say, is the most important element in our make-up.

Given that we must accept the moral position of man, it is perfectly proper to tell him that he may not do certain things. However, it is not proper to impute that morality to the animals over which—both in this sense and in the biblical sense—he has dominion. I am not in a position to pronounce on the morality of any individual man, in respect of shooting hounds or anything else, because, generally speaking, it has nothing to do with me. In terms of the amendment, however, I will be led astray. The proposition involves two kinds of villain; those who think that it is proper to shoot hounds and those who would deprive hounds of the ability to do what they have always done for reasons of ignorance, not understanding. The hon. Member for Pendle (Mr. Prentice) can decide which of those villains he is, because I assure him that he is one of them.

We are asked to require human beings to restrain the natural instincts of animals, not in some specified or carefully arranged circumstances such as badger chasing, as the Minister suggested, but in a normal activity that most of us carry out if we live in the country and which is one of the reasons why we are countrymen—walking with our dogs across the fields, some of which we or our neighbours may own.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire 2:15 pm, 1st February 2001

The provision does not affect only those who choose to go hunting. I am told that Graham Sirl, who works for the League Against Cruel Sports in the west country, has two terriers called Winkie and Rufus, which he allows to run about unsupervised in the manner described by the right hon. Gentleman. If Winkie and Rufus were found to have killed rabbits, their owner would be in breach of the law. The paragraph could make a criminal of a man simply because he was not following his dogs around the countryside.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

The hon. Gentleman, with whom I do not always agree, has raised an issue of great importance. Winkie and Rufus, who are technically under the control of the gentleman to whom he referred, are not unique. There are many Winkies and Rufuses throughout the country; dogs that are not taken out for a walk, but are allowed—usually quite reasonably, depending on where one lives—to roam around the countryside.

The hon. Member for Preseli Pembrokeshire—who has been even more assiduous in her attendance of the Committee than I have—referred to her own terrier and to the question of sheepdogs. [Interruption.] The hon. Member for Stourbridge knows who I am talking about. In fact, she was not here when the hon. Member for Preseli Pembrokeshire asked about sheepdogs.

Photo of Ms Debra Shipley Ms Debra Shipley Labour, Stourbridge

Will the right hon. Gentleman give way?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

The hon. Lady has spent more time on interventions than on anything else in Committee— [Interruption.]

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

As long as one can ensure that a terrier, or any dog, does not chase sheep, it can wander around on its own in the countryside most of the time, and will quite happily do so. The schedule raises a serious question. If the local chairman or paid organiser of the League Against Cruel Sports, with Winkie and Rufus in mind, allows those two terriers to wander about, and they do what terriers always do—chase rabbits and, from time to time, to catch them—we come back to the point raised by the hon. Member for Preseli Pembrokeshire. Evidently, he should have taught them, infallibly, never to chase, and certainly never to catch, a rabbit. If he knows that they do chase and do catch rabbits, is he then knowingly helping the hunt? He has to prove that he was not doing so. That is the nature of the Bill.

I know that that is embarrassing for Labour Members, because that is not what they mean. They do not want us to be in this position; they want us to be in another position. They want to be able to ban hunting without having to face awkward and difficult questions about how we put a ban into operation. Conservative Members have accepted that that is what the House has decided, but we must challenge it to find a way that does not bring the law into disrepute. They think that it is a necessary and moral law; we happen to think the opposite, but the majority agreed with the other side. How do we stop the House bringing the law into disrepute? It is a serious and central issue.

Of course I am concerned about Winkie and Rufus, but I am less concerned about the Winkies and Rufuses who wander about the countryside than about those properly under control but which do what Winkies and Rufuses do naturally. Anybody who calls a dog Winkie deserves to be imprisoned on that basis alone. Rufus is a better name, although I am not sure that I would call a dog that is manifestly not that colour Rufus.

The issue is serious. I shall put the point carefully, because I have clearly upset the hon. Member for Pendle and other hon. Members. Now that the hon. Member for West Ham (Mr. Banks) is with us, I am anxious not to upset him again. I shall put the point this way round. I am tempted to tell the Committee what my taxi driver said about the hon. Gentleman and the pigeons on his head in Trafalgar square, but I shall not do that, because I would be in trouble with you, Mr. O'Hara. [Interruption.]

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I am sorry, Mr. O'Hara. That interruption was probably my fault. I apologise; I must take responsibility.

Even though I know the depth and the authenticity of the view of the hon. Member for West Ham and even though many of those who are opposed to hunting have detailed knowledge of the countryside, in general, country people are worried that those who promote the Bill appear not to understand how it will affect those who live in rural areas. That is a widely expressed comment by those whom we represent, and we cannot ignore it.

I know that the Minister does not believe it when I say this, but I am trying to help him. If he removed from the Bill the provisions that gratuitously frighten people in the countryside, many rural people may be able to say, ``We don't agree with him on hunting. We think that he is all wrong about it. But at least he has tried to make it work in a way that does not impinge on those who do not want to hunt.''

Walking with dogs in the countryside involves the occasional foray against a rabbit; dogs cannot do otherwise. The Bill cannot be used as a dog-training exercise, and it must be accepted that that will happen. We must find a different way of presenting the issue; we certainly must not reverse the burden of proof.

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

The right hon. Gentleman is concerned that many people in the countryside believe that those who are against hunting are in some way ignorant of what happens in the countryside and of how they might be affected by the Bill. I accept that point entirely. Is not the main reason why so many who are in favour of hunting have such an impression of those of us who are against it simply that those in this House in favour of hunting have argued that that is the case? In practice, that is not so, but those in favour of hunting and against the ban have often argued that it is, which has given a false impression.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I shall be careful what I say about the hon. Gentleman because I have difficulty with his views in general. They do not seem to hang together on any ground whatever. The hon. Gentleman is a Liberal, but some Liberals are more logical than him; it is difficult to be less logical. I do not want to have it out with him. The words ``trahison des clercs'' apply to him more than to almost anyone else in this House. While we still have him with us, which will not be for long, I am pleased to answer his question.

The reason for the view of country people has nothing to do with what we say. If the hon. Gentleman had sat through this debate, he would have found that those opposed to hunting do not even know what the language means; they ask questions about whether one is likely to find rabbits and rats together when looking for rats in a barn. When that happens, it is difficult to take seriously the country claims of those opposed to hunting. I know that the hon. Gentleman has country roots and I know that he will argue that point, but he is extremely rare among those whom I hear discuss the issue.

We tend to find ourselves in a curious moral maze when debating these issues. Because we wish to make a stand on a matter that we believe to be of moral importance, we introduce other issues that should cause significantly greater moral offence and indignation. I find great offence and indignation among my constituents when they are told that they now cannot go for a carefree walk in the countryside allowing their dogs to do what dogs do naturally in the countryside, but that they must now take careful note of whether the dog has chosen a rat or a rabbit for its quarry.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

Is my right hon. Friend aware that the hon. Member for Newbury (Mr. Rendel) is, though not for much longer, the Member of Parliament for the lurcher capital of the world? Does he agree that despite the hon. Gentleman's somewhat ambiguous stand on field sports—with, for example, the all-party racing group and his own constituents—this paragraph will cause real damage to his constituents?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

My experience of the hon. Gentleman's inability to make up his mind on planning matters in his own constituency leads me to believe that perhaps he was not aware of that point, or else we would have had the ``on the one side and on the other'' speech, which is of course the normal Liberal approach to any issue. Members will recall that a constituent of mine said of the Liberals that if God had been a Liberal, we would have had the ten suggestions. There is a fundamental truth in that. I am sure that the hon. Gentleman would have told us that there was much to be said on both sides of the argument if he had realised the importance of the issue to lurchers. I had not realised that his constituency was a lurcher capital. However, if I get onto lurchers I may well excite your concern, Mr O'Hara.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs) 2:30 pm, 1st February 2001

Notwithstanding the perverse position of the hon. Member for Newbury, does my right hon. Friend agree that it is important that we should not understate the scale of the support for amendment No. 44? Will he accept that one person who gives it enthusiastic backing is Mr. Richard Benyon, the admirable prospective Conservative parliamentary candidate for the Newbury constituency?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I am not prepared to accept that intervention because we have seen that large numbers of people beyond the bounds of any political party realise that the issue is of such importance that they are prepared not to raise those matters. I am a bit ashamed of my hon. Friend for having raised it at all. The hon. Member for Newbury stands or falls by his own record—and that is why he will fall, but that is a different matter altogether. Because he is illiberal on this issue, people will not vote for him. His aim is to force people to train their dogs not to chase rabbits—that is not very liberal. Gladstone would never have done that, and he was the last person of any importance in that party.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

They were so unpleasant to each other that I prefer to leave them aside. I move on rapidly, Mr. O'Hara, as I see you stirring in your seat.

The issue before us is whether it is reasonable to use a Bill to abolish hunting as a vehicle for the training of dogs and it is not. We are asking Parliament to do something that is manifestly potty by saying that it should take no cognisance of any of the natural laws. Lord Tennyson has much to teach us:

``Nature, red in tooth and claw''

is not a bad phrase. I know that it affronts the sentimental, the suburban and those for whom a walk means a step to the local, but animals kill other animals. That is not only true, but necessary, for without it the natural order cannot continue. We talk about the speed with which we add a billion to the human population, but the animal population is properly kept under control by natural predation. There is a problem in the countryside with rabbits—there are more and more of them; they will therefore become an increasingly easy target for our dogs. I am not prepared to believe that it is necessary for me to defend myself in court by saying that I did not mean my dog to chase a rabbit, but had taken it out for a nice day's ratting. That does not seem to be a proper or logical position for the mother of Parliaments.

The Government have been criticised for spending much time on the subject of hunting when there are many other matters that ought to have occupied the House. I share the sentiment behind that, but I will take the argument against it for granted at the moment. However, what cannot be defended is the idea that Parliament is seriously suggesting that ordinary country people have to plead their defence against malicious prosecution. The Government so far have suggested that no one will find themselves in that position—it will all be perfectly all right. We shall all be quite happy in the countryside and only when it is absolutely obvious and the Director of Public Prosecutions has personally intervened will it be decided that, on that occasion, in those circumstances, the case is so given that none of the defences will stand and some one will be found guilty. That is not how things happen. In most constituencies, a small number of people—happily, they are in the minority in my constituency—feel so passionately about the issue that they will do everything in their power to engender a prosecution.

Let me offer a brief parallel. A farmer in my constituency is being prosecuted because mud on the road that is said to be his led indirectly to a fatality, despite the existence of warning notices. I cannot comment on whether that is true, and I would not dream of doing so, but I wager that when the House discussed whether farmers should be required to ensure that mud is not left on the road when harvesting sugar beet, no one suggested that, as a result of such legislation—

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

Order. If this case is before the courts it is sub judice and should not be debated in this Committee.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I am not commenting on the nature of that case or referring to it in any way, except to say that because it exists, the debate in which we are engaged is not a flight of fantasy. Had that case not arisen, this debate would indeed have been regarded as such.

The Minister has repeatedly told me not to worry, that I am conjuring phantasms from the skies. The opening words of ``The Tempest'' are clearly close to his lips. However, the truth is that in every constituency there are people who would do their best to ensure as many prosecutions as possible, and for two reasons. First, they hate those who hunt, who might hunt, or who have the potential to hunt. Secondly, such prosecutions are a very good way to secure advertising and money. Constant attempts would be made to prosecute those who would have to defend themselves against such charges because the burden of proof would have shifted under this legislation.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

I have been listening carefully to what the right hon. Gentleman has to say. He wants good law, rather than a Hunting Act through which a coach and horses has been driven. Would he support the Bill if it were amended to exclude rabbits?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

As Mr. O'Hara has said on several occasions, we are not here to debate the Bill's basic principle, with which, as the hon. Gentleman knows perfectly well, I disagree. I think that hunting is perfectly all right. I am in favour of it, I would like it to continue and I am determined that it will continue.

Photo of Mr Tony Banks Mr Tony Banks Labour, West Ham

Will the right hon. Gentleman give way?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I must answer the point made by the hon. Member for Pendle. I would not be in favour of the Bill if it were amended to include rabbits and exclude foxes, for example. I am arguing not about whether hunting is right or wrong, but whether in defence of the principle that hunting must be banned it is necessary or proper to require a person who accompanies a dog on a walk—for most of us, the relationship is that way round—to prevent the dog from chasing rabbits, even though it would be allowed to chase rats on that person's own land. The hon. Gentleman's suggestion would not persuade me to support the Bill, but it would make the Minister's life much easier, because people in the countryside would feel that he had listened to their concerns—and I am prepared to listen to the hon. Member for West Ham.

Photo of Mr Tony Banks Mr Tony Banks Labour, West Ham

The right hon. Gentleman has now got round to answering the question, after a great deal of verbiage.

In Committee we attempt to amend a Bill to make it workable. We are listening carefully to the argument regarding rabbits. I do not expect the right hon. Gentleman to support a Bill with whose principle he does not agree, but if an amendment were tabled that excluded rabbits, would that make the Bill more palatable and acceptable to him, so that he would get more support for it?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I want to be careful in my answer. I am attacking the provision not because it is germane to the central issue but because I am trying to make the Bill work—that is our job—and the provision will make it more difficult to make the Bill work.

If the hon. Gentleman is asking, ``Would more people find the legislation acceptable?'' the answer is yes, I am sure that they would, because they would say, ``At least we have not been caught up in this whole weft of nonsense. At least I don't have to think about it. I take my dog for a walk, he chases rabbits and I do not find myself embarrassed by it.'' Perhaps the hon. Gentleman will table, or support, an amendment that would enable us to make that clear.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I shall not be led astray by my hon. Friend's suggestion that it should be called the Winkie amendment. For the hon. Member for West Ham to claim that I had spoken for some time on that answer was, I thought, a bit rich, given that his interventions in the Chamber, although amusing, have certainly been prolix.

I return to the central issue on which I wish to end. People in the countryside find the provision unacceptable not only because they are opposed to the principle of the Bill, but because they see that it will not work. I hope that the Minister will recognise that it will not help. Why does he not concentrate the public's mind on the single issue on which those who believe that hunting should be banned want us to concentrate, which is that although it is acceptable for animals to chase animals, it is reprehensible for human beings to join in or enjoy it?

There is an argument along those lines, although it is not one that I endorse. There is no argument for saying that I should be at risk of criminal prosecution because the dog that I take for a walk, unlike that of the hon. Member for Preseli Pembrokeshire, is not so highly trained that it can distinguish at all times, in all seasons and all circumstances between the rabbit and the rat. I see no moral difference, and if there is no moral difference, there is no difference. Animals can see no moral difference, and therefore there cannot be a difference. I see no moral difference between what happens on my land and what happens on someone else's land. Animals can see no moral difference, so animals cannot make that difference. We are demanding of human beings something that, in practical terms, they have no hope of carrying through.

Photo of Mr Colin Pickthall Mr Colin Pickthall Labour, West Lancashire 2:45 pm, 1st February 2001

I wish to refer briefly to a couple of the issues raised by Conservative Members. The right hon. Member for Suffolk, Coastal (Mr. Gummer) said—it feels like three hours ago—that we cannot change the nature of nature. Perhaps unfortunately, we can. We do it all the time and it has been done for thousands of years. Animals and plants have been changed by forced, manoeuvred or engineered evolution. Hunting depends entirely on changing nature, interfering with nature, changing the nature of dogs—training them, breeding them to different sizes, breeding them specially for speed, stamina or some other quality. Of course nature is changed by us—in the present context, specifically to enable hunting to take place. When the right hon. Gentleman scoffed in his Obadiah Slope fashion at my hon. Friend the Member for Preseli Pembrokeshire, he said that one cannot train dogs to differentiate between mammals such as rats and rabbits. Later, he qualified that statement by saying that one cannot train them to do it on all occasions.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

What I said was that it is not acceptable for a Bill to force on people the duty to do that, which is entirely different.

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

I was coming to that. My hon. Friend the Member for Preseli Pembrokeshire did not suggest that the Bill will force people to train their dogs in a particular way. It manifestly will not do so and there is no intention that it should.

Most breeds of dogs are trainable: that is why they are popular pets and work animals. To give an illustration, I once had occasion to visit the home of my hon. Friend the Member for Weaver Vale (Mr. Hall). I knocked on the door, and when it opened I was greeted by a fast and violent dog that had the manifest intention of removing my reproductive parts. I expect that my hon. Friend would like the name of the dog to appear in Hansard, which he probably reads to it at night: it is Jett, which is short for suffragette. Fortunately for me, the dog was on a leash and was restrained just in time. As my hon. Friend knows the dog's nature, he should perhaps train it not to relish that activity so much—or feed it better. He should at least train it to differentiate between a caller who is a Labour man and one who is a Tory.

I shall offer another illustration. On Monday I attended a meeting of the Good Dog campaign, which commends and awards prizes to local authorities that have the best record on dog control. I am pleased to say that West Lancashire, my local district council, came second. Cuthbert Jackson, its chief dog warden, has trained his two dogs—a border collie and a German shepherd—to skateboard, and he takes them into schools to get children talking about the amazing things that dogs can do. If someone proposes an amendment to the effect that all hunting must take place on skateboards, I will support it.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does not the hon. Gentleman see that it is offensive to teach a dog to skateboard, but not offensive for it to chase a rabbit? It does the one thing naturally, while the other is an unnatural, unacceptable and very suburban activity.

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

Order. I do not necessarily find it offensive that dogs should be trained to skateboard, but we are debating what dogs should be trained not to do, not what they can be trained to do.

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

You are quite right, Mr. O'Hara, as always.

I return to the point towards which the right hon. Gentleman was wandering: that we cannot change nature and that it is natural for dogs to do some things but unnatural for them to do other things. The right hon. Gentleman chooses what is natural to cover his argument. I shall refer to something else that is relevant to the amendment before us, as to all other amendments so far: the constant sneering that Labour Members do not understand rural life.

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

There we go again. Thank you very much.

When my hon. Friend the Member for Worcester (Mr. Foster) said that he is a country boy, the answer came that he is not, because he is Labour and that he cannot be Labour and brought up in the countryside. The two sides of the Committee may disagree and our analyses of the issue may be diametrically opposed, but it is offensive constantly to insult hon. Members by saying that they lack knowledge.

Later in his speech, the right hon. Member for Suffolk, Coastal sneered at people who live in suburbs—if he reads Hansard he will see what he said—and people who walk to the pub. It will be nice ammunition in a manifesto to say that people who live in suburbs or walk to pubs are inferior. My hon. Friends the Members for Weaver Vale, for Preseli Pembrokeshire and for Pendle, the Minister and I represent huge rural areas and many rural people.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

The hon. Gentleman misunderstands the point made by my right hon. Friend the Member for Suffolk, Coastal and other Opposition Members. We all know good Labour men—as the hon. Gentleman would call them—who are tremendous countrymen and take part in all forms of country sports with great enjoyment. I know lots of good Labour men who are keen coursing fans and hunting people, but we know very few good Labour men who are in favour of abolishing foxhunting. The criticism is not that people do not know about the countryside because they are Labour—that would be nonsense. However, the Minister claims that he knows enough about hunting to pilot through the House a Bill to ban foxhunting on the strength that he has been once to a hunt kennels and met the hunt staff. That is clearly preposterous.

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

Order. Before the hon. Gentleman continues, I have a constant problem of confining debate to the subject of the amendments in hand. I am not prepared to accept too much generalised discussion of who understands the countryside and the characteristics that make them understand the countryside or not. I am merely concerned with whether people understand, in relation to the amendment, the feasibility—that is what I understood to be the point made by the right hon. Member for Suffolk, Coastal—of expecting owners of dogs to prevent them from doing what they do naturally. To discuss in that context whether some people in the countryside understand that and others do not is specific to the amendment and I should prefer our discussion to be specifically confined thus. There should be no discussion of pubs.

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

Thank you, Mr. O'Hara, you are quite right. Suffice it to say in response to the hon. Member for Mid-Sussex (Mr. Soames) that I also know several, but not too many, good Conservative men on my side of the argument. I have appeared on platforms with Conservative councillors from Sefton and west Lancashire who are on the same side of the argument as me.

A point that was raised by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) should be challenged. He suggested that the House did not know what it was doing when it voted for schedule 3 because it had not specifically examined the issue of terrier work in that context. In evidence, he alluded to a confused correspondence between two Liberal Democrats. As the four Liberal Democrats on the Committee stand for three totally different positions, it is no surprise to learn that there are disagreements and confusion. It is, however, inadmissible to argue that the House did not know what it was doing when it voted by a majority of more than 200. That is an extraordinary suggestion.

For instance, my hon. Friend the Member for South Derbyshire (Mr. Todd) discussed that precise issue in Committee of the whole House. After describing terrier work and giving his thoughts on it, he said—this is perhaps what the Opposition ought to be trying to say—

``we must address the need for a precise definition of when one may use one's dog and of how one controls a dog in pursuit of a rat if it goes underground or on to someone else's property. I do not want to make people involuntary criminals by passing this law.''—[Official Report, 17 January 2001; Vol. 361, c.784.]

There we have a Labour Member making it clear that he had a problem in that respect and underlining it in no uncertain terms. Obviously, not everyone was in the House at the time and therefore not everyone heard it or even read it, but one cannot assume that the House did not know what it was doing given that that argument had been made, in addition to the long and graphic speech dedicated to the discussion of terrier work that was made on Second Reading by my hon. Friend the Member for City of Durham (Mr. Steinberg).

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

I am not referring to terrier work in the digging out of foxes at the end of the hunt—which many hon. Members probably assumed was covered by the legislation—but to the use of dogs to deal with rodents and permitting a dog to chase a rabbit. The illustration the hon. Gentleman gives makes my point. His hon. Friend the Member for South Derbyshire was indicating that it was not his intention that the legislation should extend to the latter sort of activity and that he did not think it would. That, I believe, would be the view of most hon. Members: they thought that they were abolishing foxhunting and hare coursing and probably terrier work associated with foxhunting, but not the use of dogs to pursue rats or to chase rabbits.

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

That may be true of some hon. Members, but it was not so in my case when I read the Bill and participated in the debate. I hope that I understood precisely what it meant, but the point is that my hon. Friend the Member for South Derbyshire put a doubt into the mind of the House that the Standing Committee had to examine, as we are at the moment. That is the way the process functions. That the House misunderstood the Bill could be said in connection with any Bill if one considers the attendance during debates and the number of people who read Bills with care.

This amendment seeking to remove paragraph 3, including the important phrase ``knowingly permits'', is simply a wrecker. It would introduce another loophole by which the Bill would be rendered impractical. I hope that the Committee will firmly reject the amendment in the way that it did the previous amendments and for the same reason—because they would weaken the Bill and make it inoperable by being too confused to interpret.

Photo of John Maples John Maples Conservative, Stratford-on-Avon 3:00 pm, 1st February 2001

The hon. Member for West Lancashire (Mr. Pickthall) seems to be arguing that because the proponents of the Bill cannot draw the offence sufficiently precisely and tightly to be clear what it is, they should be allowed to widen the net to include by accident all sorts of other things that it is nobody's intention to include. As I said last week, I accept that the House has voted for a ban on foxhunting, hare coursing and beagling. That is fine. If the Bill did just that, the Committee proceedings would be very short and the general principles would be being argued in another place, but it goes considerably wider than that. We must ask ourselves, first, whether that is right and, secondly, why. I shall discuss first what the schedule does, and then why it and so much else is in the Bill.

The hon. Gentleman said that it was right to widen the scope of the offence as otherwise there would be all sorts of loopholes, but the Bill creates all sorts of rather arbitrary loopholes. We shall no doubt come next week to a set of amendments that deals with the premise that it is all right to flush the rabbit out if one shoots it or if a falcon picks it up and kills it, but not if a dog kills it, which seems difficult to argue in terms of morality. Therefore, the Bill creates arbitrary exemptions. If we are to ban something that people are currently free to do, we should define the offence tightly and not, arbitrarily and by accident, include other things that the proponents of the Bill did not intend to include, as the schedule is in serious danger of doing.

First, the schedule states:

``A person commits an offence if he knowingly permits a dog which belongs to him''

to be used. ``Belongs'' is then defined in paragraph 23 of the schedule as

``if he—

(a) owns it,

(b) is in charge of it, or

(c) has control of it''

Therefore, although one might own the dog but not be with it or anywhere near it when the offence is committed, the schedule creates a strict liability. If someone knows that his dog has a propensity to chase rabbits and he lets it out in his garden, or a farmer lets his dog out in the farmyard or a field, and it chases and kills a rabbit, or if one lends the dog to a farm worker who has it outside and lets it go, one is strictly liable under the schedule if it does what my right hon. Friend the Member for Suffolk, Coastal said it is natural for it to do, which is to chase and kill rabbits. Is that the intention of the promoters of the Bill?

Photo of Mr Tony Banks Mr Tony Banks Labour, West Ham

No, it is not the intention of the promoters of the Bill. The big difference between the two sides is that we want to make the Bill work, but I cannot be certain that Opposition Members want to make it work. What the right hon. Member for Berwick-upon-Tweed said yesterday in an intervention is correct. The majority of hon. Members who voted for the Bill and the majority of those who support the Bill in the country think that it is a Bill banning foxhunting, hare coursing, mink hunting and deer hunting. They do not think that it is a Bill, nor did they propose it to be one, about dogs chasing rabbits and rats. I hope that both sides of the Committee listened to that. We are listening. We want to make the Bill work. I hope that Opposition Members will join us in that.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I do not disguise my view that I hope that the Bill never becomes law but, if it does, I want it to be what people intended it to be, with no grey areas where people may accidentally commit criminal offences which they did not know about and which it was never the intention of the Government or the promoters of the Bill to make into criminal offences.

We tabled amendments to clause 1, which would have exempted rats, rabbits and, I think, mink. All the Government Members voted against those amendments, which would have solved much of the problem, certainly in relation to rabbits and rats, which is what most of the argument has been about. If the schedule simply said ``If you let your dog go and it chases a mink'', I would not have had so much of a problem with it, but it says ``If you let it go and it chases anything''—rabbit, rat or any kind of mammal. That imposes a strict liability on people if they simply let their dog outside.

The schedule provides that a person commits an offence if he:

``permits a dog ... to be used in the course of the commission of an offence''.

It is not clear what that means. Does it mean used by people who are hunting? If the schedule said that, it would be clearer, but it simply says ``used'' in the passive tense. The dog is being ``used'' if one simply lets it go. If, however, the schedule means a dog that is being used by somebody who is hunting—pursuing a wild mammal with dogs, which is the definition of hunting—it should say that, but it does not.

Therefore, I have two specific criticisms about the drafting of the schedule, which I hope the Minister will be able to deal with when he replies. The first is that one could commit the offence accidentally, and the second is that nobody knows what the word ``used'' means.

My right hon. Friend the Member for Suffolk, Coastal dwelt on the morality or lack of it of the Bill. It has seemed to me from the start that if the Bill is not about improving animal welfare or morality, it is about nothing. It is interesting to note that the paragraph deals solely with dogs. The Burns report made it clear that organised hunting kills some 14,000 foxes a year.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

In any event, we are talking about thousands of foxes. However, according to an article in today's edition of The Times, cats kill 233 million mammals and birds. I am aware of the distinction that the Bill draws in that regard, but I should point out that I would far rather that my cats killed shrews than robins. Cats have decimated the starlings, sparrows and—I am sad to say—robins in our garden. We have two cats and I know that the hon. Member for West Ham also has one. Perhaps his is the Macavity of London and does not kill too many animals, or kills them in secret at least so it will not be found out.

Why does the Bill exclude the single biggest killer, while protecting 10,000 foxes that are vermin? Cats kill 233 million mammals and birds that are, on the whole, fairly harmless creatures. In some cases, cats do serious damage to the populations of such species. What is the moral distinction that paragraph 3 attempts to draw between letting my dog out of the back door, knowing that it has a propensity to chase and kill rabbits, and letting my cat out of the back door, knowing that it has a propensity to eat shrews, mice and birds? There is no moral difference.

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

Order. I have allowed the hon. Gentleman to make his point, but he should be aware that we have already debated the inclusion or exclusion of categories of animals that hunt or are hunted.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I accept your admonition, Mr. O'Hara. However, I am trying to understand why the paragraph is included in the Bill. The amendment would remove the paragraph which has no place in the Bill. It achieves no moral aim and I am merely trying to illustrate why that is so. It is of a piece with other exemptions in paragraph 7, which also seem rather arbitrary. The cat point is perhaps slightly out of order, but it illustrates the enormous damage that is done to wildlife by pets that we own, keep, feed and let outside.

As I have said, if this Bill is not about morality and animal welfare, it is about nothing. If there were genuine proof that the welfare of foxes—which must be killed—would be improved by abolishing hunting, I would find it difficult to continue to support hunting. I do not hunt—I oppose the Bill simply on the ground that it would remove an existing liberty that people should be free to enjoy, unless an overwhelming case can be made that hunting is unnecessarily cruel to animals.

Most people outside this place—and inside it, for that matter—probably thought that the Bill was confined to foxhunting. On discovering that it also deals with hare coursing, beagling and deer hunting, some might have said, ``Okay, that's fine. I accept that you want to prevent people on horseback from chasing an animal with a pack of hounds.'' However, they did not imagine that the Bill would deal with dogs that, on being let out the back door, chase rabbits.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

I have been persuaded by contributions such as the hon. Gentleman's and I am fearful that the Bill will be ridiculed as totally unworkable. I am giving serious consideration to tabling an amendment to exclude rabbits.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

We are making some progress, Mr. O'Hara. Our efforts are not all in vain.

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

Order. We have had that debate.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

You are quite right, Mr. O'Hara, in saying that that debate is over, in that our amendment to paragraph 1 was defeated. However, if amendment No. 44 were accepted and paragraph 3 were consequently deleted, the objective that the hon. Gentleman is considering proposing would be achieved.

The Bill is so widely drawn that it is difficult to believe that it is concerned with animal welfare. It has been introduced by those who, although they may dislike beagling, hare coursing and stag hunting, object primarily to foxhunting. It has been dressed up with a lot of other bits and pieces around the edges to make it look like a piece of animal welfare legislation, which it palpably is not. One must ask how that came about.

It is interesting that throughout our debates, whenever we have advanced a technical argument about why a word is or is not in the Bill, the Minister has said, ``You'll have to ask Deadline 2000: it's their schedule.'' When I said, ``But hang on, this is a Government Bill'', he said, ``Well, the first schedule came from the hunting lobby, the second schedule came from the Middle Way Group''—supported by the hon. Member for Montgomeryshire (Mr. Öpik), who is not here, and my hon. Friend the Member for Mid-Worcestershire (Mr. Luff)—``and this schedule came from Deadline 2000.'' That is a strange way for a Government to proceed with legislation. In effect, they have accepted a Bill wholesale from outside lobbying organisations.

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

It was not necessarily unreasonable for the Government to present to the House the proposals of three different groups, and I do not criticise them for doing so. What is puzzling is the absence of any Government amendments to the schedule, as it is now becoming necessary for them to ensure that the Bill is workable and can achieve the objectives for which the House voted.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

The right hon. Gentleman puts it correctly. It was reasonable for the Government to give the House the choice and to accept the alternatives that were proposed by the various bodies involved in the argument. However, as soon as the House had opted for one of the schedules, it became the Government's schedule. This is a Government Bill in the name of the Prime Minister, the Home Secretary, the Deputy Prime Minister, the Chancellor of the Exchequer and, among others, the Minister. They cannot cop out by saying that it is somebody else's.

The Minister's argument that the schedule came from elsewhere would be more acceptable if some Government amendments had been tabled, because I have never heard of a Bill coming into the House from outside in respect of which the Minister does not say that it is technically unworkable.

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

I must make it clear that the Government did not simply accept a schedule drafted by someone from outside, but had parliamentary draftsmen work through it to consider the policy issues put forward by Deadline 2000. This is a Government Bill, and I have stressed since we began debating the schedule that it is our obligation to ensure that it is workable. It is for the Committee to consider the policy issues involved. For example, removing rabbits has been suggested. I might have some personal sympathy with that, but my objective is to ensure that the Bill becomes workable law. It traduces me for the hon. Gentleman to suggest that the Government seek to introduce unworkable law. We want workable law, but there are some policy issues involved that the House has already taken a view on.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I accept that that is the position: the Minister has made it clear before. I am simply saying that this is the Minister's Bill and he cannot get away with saying, when he is asked about dogs working underground or rats being chased on to a neighbour's land, that we will have to ask Deadline 2000. He cannot claim that he is playing a neutral role and that this is someone else's proposal that we are at liberty to amend. The amendments that we have tabled have been perfectly sensible, and do not appear to be out of tune with the House's decision two weeks ago, yet he has whipped his party to vote against them. He cannot have it both ways: either it is a Government Bill or it is not.

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

The hon. Gentleman has made a few contributions to the Committee's proceedings, but he has not often been here to represent the interests of his constituents. If he had been, he might have understood that the kind of whipping to which he referred has not occurred, and he might have heard the hon. and learned Member for Harborough praise the neutral way in which I have presented the Bill. I have sought, on behalf of the Government, to preserve that neutrality throughout. The hon. Gentleman must not traduce me in this way.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

We shall see in a few weeks' time who is better at representing his constituents on the issue. I think that I have been here for every vote bar one, when I was in bed with flu. I have certainly been here much more frequently than many Labour Members who have voted in Divisions but are not here now.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South 3:15 pm, 1st February 2001

Order. I must intervene. The right hon. Member for Suffolk, Coastal made a long speech, but I was able to compliment him on the fact that his central concern—albeit with more lapses as he went on—was whether the wording of the schedule was workable. That was a legitimate question to ask and to debate. I am waiting for the hon. Gentleman to address himself specifically to the schedule.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I was led astray by the intervention.

The amendment would remove paragraph 3 from the Bill. We must try to explain why the paragraph is unworkable and ask why it is in the Bill, because it does not seem necessary to the primary purpose of the Bill. I am trying—it may be a vain attempt—to persuade some right hon. and hon. Members opposite to ask themselves why paragraph 3 is in the Bill and to vote for the amendment.

The Government did not come up with the provision. Deadline 2000 came up with it, as the Minister said repeatedly last week. Deadline 2000 turns out to be an umbrella group for the RSPCA, the International Fund for Animal Welfare and the League Against Cruel Sports, all of which have lobbied long and hard against foxhunting, but not, as far as I know, against dogs in the garden going off and chasing a rabbit. Why is the scope of the Bill being widened so much? The provision before us, and several other provisions, seem to be in the Bill to make an anti-foxhunting measure look like an animal welfare measure.

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

If I may, I shall deal with that point. Paragraph 6 of the letter from Bill Swann of Deadline 2000, which has been circulated to all Committee members, explains the proposal in terms of policy and the reasons for it. The hon. Gentleman should have received that letter this afternoon.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I did receive the letter and I thought that it was a little thin. In many ways it supports my argument that an anti-foxhunting measure is being dressed up to look like an animal welfare measure. The Government have accepted the provision wholesale and, apparently, no amendments will be allowed to that proposal from an outside group. That makes one wonder what their motives are. They are responsible for the provision being in the Bill and I believe that it is there to broaden the scope of the Bill. Such provisions were not in previous private Member's Bills.

One of the parties to Deadline 2000 is the International Fund for Animal Welfare, which indirectly gave £1.1 million to the Labour party through the political animal lobby.

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

Order. I must rule that out of order. The origin of the Bill and its relationship with any political party is irrelevant to our debate, which is whether paragraph 3 should be removed from the Bill on its merits. I ask the hon. Gentleman to confine his comments to that.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

May I seek your guidance, Mr. O'Hara? We are trying to understand the motive for paragraph 3. The Minister said that it was in the Bill because it was proposed by a group outside the House called Deadline 2000. Members opposite are speaking against the removal of the paragraph from the Bill and I am trying to understand the motive for that. If, as it seems to me, there is a clear financial link between those who are proposing the provision and the Government, who oppose the amendment, the Minister must explain that.

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

Order. I understand that there was a free vote on the Bill in the House. Any financial links, whether they exist of not, are irrelevant to our debate on the amendment.

Photo of Mr Tony Banks Mr Tony Banks Labour, West Ham

It may well be that the motive of those who proposed the provision is to prevent loopholes and that is not relevant to any payment of money. Heavy clues have been given on this side of the argument that in trying to shut the loopholes, the Bill may be becoming faulty and may fail in terms of establishing the principle—namely, to abolish foxhunting, hare coursing, deer hunting and mink hunting. I hope that at an appropriate stage an appropriate amendment will be tabled.

Before the hon. Gentleman talks about money given to political parties by supporters of the Bill, he should remember that the International Fund for Animal Welfare gave money to the Conservative party and the Liberal Democrats, and I have the photographs to prove that to him.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I hesitate to allow myself to be drawn down that cul-de-sac. I will come back to the hon. Gentleman's point, but I think that IFAW gave £100,000 to the Conservative party and the Liberals, and £1.1 million to the Labour party. That is the kind of cover that is being created in the Bill. Those were token gestures to allow it to say, ``We're an all-party group'', which it is not.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Will my hon. Friend take up the point made by the hon. Member for West Ham? I happen to believe that the hon. Gentleman holds these views, but I happen to disagree with him. I think that they are irrational and take strong exception to them, but he holds them decidedly, emphatically and honourably. He suggests, however, that in seeking to block loopholes, the paragraph may have gone too far. At least he is indicating that we may reach a consensus and find something that does not cause trouble. Would my hon. Friend say, at least to the hon. Member for West Ham, that if we could find a way through, Opposition Members would be happy to try to accomplish that? It would make the Bill's operation much better. Even though we still disagreed with the Bill, it would be much easier to defend its operation in the countryside.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I am interested in the tone of the interventions from the hon. Members for West Ham and for Pendle. My right hon. Friend puts his finger on it. I would love to see the Government or a Labour Member table an amendment that tightened the definition of the offence.

Paragraph 1 states:

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

The schedule then defines hunt, wild mammal and dog. That is clear and I understand that, but other unnecessary offences are then created in paragraphs 2 and 3. The hon. Member for West Ham suggested that perhaps they block loopholes. I can see that there is a possibility of that, although perhaps we would have to define hunting more precisely. The danger of proceeding in that way is that one may widen the offence to make all sorts of things criminal offences which, presumably, the hon. Member for West Ham does not intend so to make. We would welcome an amendment that sought to deal with that. I am waiting for such an amendment from the Government or for them to accept an Opposition amendment. As I have said, in all the time that I have been in this place, the Government have rejected all private Members' Bills and all clauses drafted by outside bodies that I have supported in Finance Bills on the ground that they are technically deficient, saying, ``We will look at it and table something better''. Yet here we have pages of legislation from an outside body that are perfectly drafted.

While maintaining what the House has decided—it wants a ban on hunting—we can improve the Bill by defining the schedule more narrowly than simply a provision on letting one's dog out of the back door and it killing a rat or a rabbit. I would welcome that, as I expect would many of my right hon. and hon. Friends. At present the schedule goes too far and its origins are muddied in two respects. First, an anti-foxhunting Bill has been dressed up to look like a piece of animal welfare legislation, which is why we are getting into all these difficulties; and, secondly, the financial nexus between the drafters and proponents of the schedule and the Government needs some explanation from the Minister.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

In an earlier intervention the Minister said that it was not his purpose to prosecute the dog; it was his purpose to prosecute the owner. He therefore said that if somebody was walking his dog and the dog got out of control and caught a rabbit, there were no circumstances in which the Crown Prosecution Service would institute a prosecution. That is fine as far as it goes, but it leaves aside the question of private prosecutions. If there is no way in which the CPS would institute a prosecution in such cases—we have now received fairly heavy hints from Members the Government Benches on that—the question arises of why paragraph 3 is included in the Bill. If we are to believe the hints of the hon. Members for Pendle and for West Ham, we must assume that it is possible that at a later stage those who support the Bill will remove the paragraph—or perhaps not. Perhaps it is their intention only to extend the dispensation to rabbits that already exists for rats. If that is a future intention, it is all up in the air; we have to debate the paragraph as we now see it.

We propose that paragraph 3 should be deleted. If that were done, those who wish to abolish organised hunting as everybody understands it—beagling, foxhunting, deer hunting—could achieve that by relying on paragraph 1. I believe that to be the case, but I presume that that is not the view of Deadline 2000 and those who have drawn up the Bill. They obviously believe that paragraph 1, which states:

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

could be circumvented and that people could carry on hunting, so paragraph 3 is necessary:

``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 do not know why they believe that that paragraph is necessary and why paragraph 1 cannot stand on its own. Will the Minister explain that to the Committee? It is important that he does so. He has been fair and has told us that he comes as a neutral arbiter to our proceedings—although he personally opposes hunting—and simply wants to carry out the clear will of the House. Apparently hon. Members want to abolish hunting. However, we have not yet heard any arguments to justify legally the inclusion of paragraph 3. Will the Minister tell us whether he is now giving a commitment on behalf of the CPS—which, by the way, I do not think he is entitled to do?

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

Any commitments from the CPS will be given by the Lord Chancellor's Department, the CPS and the appropriate authorities rather than by me. I have simply set out the position on prosecution and the policy considerations of the CPS before undertaking prosecutions.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

With respect, I do not quite understand what that intervention means. The Bill is not yet an Act. Of course I cannot know what discussions have taken place between the Home Office and the CPS, but the CPS, although a wholly owned subsidiary of the Government, is presumably independent. My hon. and learned Friend wishes to intervene and can give a more considered judgment on this matter.

Photo of Edward Garnier Edward Garnier Shadow Attorney General 3:30 pm, 1st February 2001

I merely wanted to place in my hon. Friend's mind a doubt about the Minister's remark. He is a Minister in the Home Office, but he said that the Lord Chancellor would give the undertaking on behalf of the CPS. The Lord Chancellor is a man of huge ambition and no doubt wants to take over every Government agency on which he can lay his hands. As I understand it—I am the shadow Attorney-General—the CPS is politically responsible via the Attorney-General, not the Lord Chancellor. I am sure that the hon. Member for Liverpool, Wavertree (Jane Kennedy), who is Parliamentary Secretary to the Lord Chancellor's Department, would be the first to admit that the Lord Chancellor, despite his many charms and abilities, has yet to lay his hands on the CPS.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Following that intervention, it is clear that the Lord Chancellor would not give the undertaking. I assume that the Minister is correct in saying that the matter is not one for him, so we return to the point that he is not entitled to give a commitment on behalf of the CPS.

I find it extraordinary that we are enacting a provision that is so weak in its efforts to carry out Parliament's intention to abolish hunting that the Minister feels obliged to say that those charged with upholding the law will not use it to prosecute. What, therefore, is the purpose of paragraph 3?

All that leaves aside the question of private prosecutions. Many people in the League Against Cruel Sports and similar organisations are anxious to take up the campaign. It is perfectly possible that a gamekeeper carrying out his normal functions could be the subject of a private prosecution not under paragraph 1, but under paragraph 3. That is why this debate—although it has been characterised by virtuoso performances and the occasional bit of merriment—and paragraph 3 are actually rather important. If retained, paragraph 3 could result in considerable mischief, in that a gamekeeper carrying out his normal duties could be prosecuted under the Bill.

For that reason, I want to consider what would happen in such an eventuality and the probable result of retaining the paragraph.

The difficulty is that in such a circumstance a gamekeeper could rely on paragraph 8, which states:

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

If a gamekeeper were the subject of a prosecution under paragraph 3, he could therefore produce a defence under paragraph 8. However, in doing so the burden of proof would be shifted from the prosecution to the defence. The gamekeeper, a man of modest means and salary, who does his normal job and is not involved in any form of sport, would have to prove beyond reasonable doubt that he was engaged in rodent control. That is rather worrying.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

My hon. Friend's point is a good one, save one thing. I suspect—the Minister might confirm this—that the standard of proof required of a defendant is the civil, not the criminal, standard. Nevertheless, his overall point is unarguable.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I apologise. The burden of proof, albeit that which is required in civil trials, shifts to the gamekeeper.

One complication of the procedure is that the burden of proof shifts during the trial. Under paragraph 8, it is placed on the gamekeeper, but under paragraph 3 it shifts back to the prosecution—which presumably has to prove it to the criminal standard. That is potentially complex.

We now come to the heart of such a trial, which would turn on the question of whether, when the gamekeeper or other person was walking the dog, they knowingly permitted it to hunt the rabbit. The phrase ``knowingly permits'' is therefore important. I shall not repeat the arguments that I advanced on Tuesday in relation to paragraph 2, although some of them apply in this case. I believe that I will be in order if I allude briefly to what I said: the courts will consider knowledge on the part of the offender of all the material circumstances, and wilfully shutting one's eyes to the truth is not a defence.

The gamekeeper or dog walker—in contrast to the landowner whom we discussed on Tuesday—will be placed in serious difficulty. Given the way in which the paragraph is phrased, it is possible that prosecution of such a person will be successful. In terms of knowledge, all the prosecution has to prove is that the person was aware of all the material circumstances. In all the previous cases that courts have discussed in which knowledge was an issue, some doubt was present as to whether the defendant was aware of the material circumstances. In a case such as this, there can be no doubt.

The three exhibits—as they might be described—are the owner, the dog and the dead rabbit. As there would presumably have been witnesses to the act, it would be relatively easy for the prosecution to prove that the dog had killed the rabbit and that the gamekeeper was in control of the dog at the relevant time. It would then follow that the gamekeeper should have been aware of all the material circumstances, and that he must therefore be guilty.

Some people have approached the matter with a degree of levity, saying that that will not happen in the real world. However, I am in possession of recent publicity from the League Against Cruel Sports, which takes a dim view of the practice of gamekeeping and of the people who make a living from it. It argues that gamekeepers artificially interfere in the countryside and destroy wildlife in order to protect stocks of partridges and pheasants. It is possible that a prosecution could bring a test case to prove that a gamekeeper was guilty of such an offence. That would be no laughing matter for the gamekeeper. If found guilty, he would face the prospect of his dog being destroyed, a £5,000 fine, probably the end of his career, and great difficulty, given his limited ability to pursue other careers, in keeping any job. It is therefore a serious matter. It will be too easy for the prosecution to successfully bring a case.

In the debate on Tuesday, the Minister implied that the phrase ``knowingly permits'' in paragraph 2 was absolutely clear. Arguably, he may have had a point. Section 26.87 of the new 2000 edition of ``Archbold'' states:

``Suspicion is not knowledge, but knowledge may be inferred from shutting one's eyes to suspicious circumstances.''

In other words, suspicion per se is not enough to constitute permission, but knowledge of one kind or another is essential to permission.

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

Order. We had an extended debate on those words on amendments Nos. 38 and 39. The debate on ``knowingly permits'' may fairly be said to be over.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I take your guidance, Mr. O'Hara. I am not trying to make a silly point. I am trying to have a serious discussion of the law—and this is Parliament, where we are trying to create good law. The phrase to which I referred was not one I talked about on Tuesday. I deliberately did not go back over the part of ``Archbold'' with which I dealt then. I am referring to a new part.

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

Order. That may be, but amendments Nos. 38 and 39, which have already been debated, certainly refer to the words ``knowingly permits'' and they were discussed. The debate now is whether paragraph 3 as a whole improves or diminishes the Bill. That should be the purpose of the debate.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I accept your interpretation, as I must, Mr. O'Hara.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

We all do, Mr. O'Hara. My hon. Friend is making the point that there is a distinction between the knowledgeable permitting of a dog to do certain things and the knowledgeable permitting of the use of land. There is quite a difference between a dog—an animate object—and land, which is inanimate, as there is in concept between knowingly permitting the use of land and knowingly permitting the use of a dog.

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

Order. Amendment No. 39 specifically refers to line 32, which includes the words ``knowingly permits''. That is part of the paragraph, the inclusion or exclusion of which is being debated.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Paragraph 3 is an onerous one—a point made at some length, but of course extremely well, by my right hon. Friend the Member for Suffolk, Coastal. Paragraph 3 is so much more onerous because refers to an animal—albeit a dog of which one is apparently in control—that is simply obeying its natural instinct. I believe that we are starting to hit home with our arguments on the matter. There is some understanding that our arguments are not time-wasting ones, but have serious import. There is difficulty in invoking the criminal law as it has been interpreted in the past when one is dealing with a dog that is simply trying to do what comes naturally to it.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I seek the guidance of the Chair, Mr. O'Hara. During your advice to us a moment ago, you referred to amendment No. 39, which also deals with paragraph 3 and would leave out ``knowingly permits'' and insert ``gives express permission for''. I may be wrong—you will correct me if I am—but I understand that amendment No. 39 has not been selected. We are discussing amendment No. 44.

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

Amendment No. 39 was selected and included for debate with amendment No. 35.

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

No. It was on the previous list.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

We are ad idem, but we were initially slightly confused.

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

I am trying to be helpful, but I do not want a repetition of the minutiae of the words in the provision. We have had an exhaustive discussion of the concept of knowing, knowingly permitting, express permission and so on. We are now discussing whether the provision improves or diminishes the Bill and whether it should be included or excluded. I want to focus on the amendment and not to return to previous debates.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

On a point of order, Mr. O'Hara. It is entirely my fault because I was confused by your reference to amendment No. 39. I apologise to the Committee and to my hon. Friend the Member for Gainsborough for that unnecessary interruption.

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

I was simply saying that amendment No. 39 was selected for a previous debate.

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

On a point of order, Mr. O'Hara, I should be grateful for your guidance. Can we distinguish between dilating on and referring to something? It would be an extraordinary requirement for my hon. Friend the Member for Gainsborough, when arguing for deletion of paragraph 3, which specifically majors on the concept of knowing that something was an issue, if he is not allowed within the rules of order to refer to the concept of knowing permission.

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

Indeed; that is precisely my point. Of course it is possible to allude to previous debates, but I am trying to avoid dilation on them, as I am sure the hon. Member for Gainsborough understands.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

This is important. I can move on to other aspects, but paragraphs 2 and 3 are different and I wanted to allude to different case law. Are you saying, Mr. O'Hara, that I cannot debate the concept of knowingly as in ``knowingly permits'' a dog to chase an animal? I would argue that this is a different debate from that on the ownership of land. Are you ruling that I cannot discuss the concept of knowingly?

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

I am saying that the opportunity to debate specifically and to dilate on those words in line 32, paragraph 3 has passed. Of course I can allow allusion, but it is for me to judge whether allusion turns to excessive dilation.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I do not want to go on about knowingly if you will not allow that, Mr. O'Hara. There is an interesting new argument, but we may be able to approach it differently.

We can start to consider paragraph 23 because paragraph 3 refers to

``permits a dog which belongs to him (within the meaning of paragraph 23)''.

We have not had much discussion so far on paragraph 23, but it is a worrying paragraph for a gamekeeper or the owner of the dog. I remind the Committee that paragraph 23 states:

``For the purposes of this Schedule a dog belongs to a person if he—

(a) owns it,

(b) is in charge of it, or

(c) has control of it.''

I have read that many times and I am still trying to work out what it means, because it is important to know. When a case is brought, as it will be, will the gamekeeper have to own the dog and be in charge of it or just be in charge of it?

What is the difference between sub-paragraphs (b) and (c)? I can understand the expression ``owns it'', but what would happens if I owned a dog, but my son took it for a walk? Who would be prosecuted? Would I be prosecuted because I owned the dog, although at the material time when it chased the rabbit and killed it, I was not in charge of the dog and had no control over it? Who would be guilty of the offence? Would I be liable to prosecution, as the owner of the dog, or would it be my son, who is a juvenile, because, at the relevant time, he had charge of the dog? What is the difference between the words

``is in charge of it''

and ``has control of it''? To my thinking, they are one and the same. Does my hon. Friend wish to assist me on the difference between the three phrases?

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

I am sorry to disappoint my hon. Friend because I fear that my intervention probably will not assist him, but he has provoked a further thought in my mind which seems to underline the paucity of the drafting of the schedule. Does he agree that it is possible to be in charge of but unavoidably unable to exercise control over the animal?

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I believe that the schedule will lead to the most complicated legal argument. I have no doubt that the test case to which I alluded, which was first brought up in Worcester magistrates court, could conceivably end up in the House of Lords, because most legal concepts of foreseeable consequence—I want to deal with those concepts in a moment—do not apply.

The court must presumably have to prove, first, that my son was in control of the dog and, secondly, that he could foresee the consequence of letting the dog off the lead, because it would certainly chase the rabbit. The rabbit is dead: that is the evidence available to the court. It is relatively easy for the prosecution to prove that my son was guilty of the offence, because dogs chase rabbits. Could the gamekeeper, my son or anybody else therefore be found guilty simply because the dog was off the lead and a rabbit was killed? That is surely a foreseeable consequence of letting a dog off the lead in any known situation. That is not a trivial point. The Minister will agree that it would be absurd if a prosecution succeeded on that basis, but a prosecution could be so brought against a person.

People have tried to grapple with the concept of foreseeable consequence.

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

The hon. Gentleman says that a prosecution might conceivably be brought. Does he agree that, first, it is unlikely and, secondly, given the terms of reference of the Crown Prosecution Service, it is unlikely to be in the public interest?

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

We are returning to the debate that we had a few minutes ago. I conceded that the Minister does not wish the Crown Prosecution Service to bring such a prosecution, but, given the stance of the League Against Cruel Sports against organised shooting, it is possible that a test case will be brought against a gamekeeper. The Minister cannot wash his hands of the situation like Pontius Pilate and say that it will not happen.

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

I do not seek to wash my hands of the matter like Pontius Pilate, as the hon. Gentleman suggests. He is making an argument and I am seeking to deal with it. We must look at the reality of the circumstances. If a frivolous prosecution were sought, the Crown Prosecution Service would retain the right to take over a prosecution and then discontinue it.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Yes, but that prosecution would not be frivolous because, in its wisdom, Parliament has agreed the Bill. The House has left the paragraph in the Bill and therefore presumably intended it to be implemented. It is not good enough for the Minister to say that what I have described will not happen. If that is so, why is the paragraph in the Bill? Surely the only reason for the Bill is that those who support it are concerned with stopping not only organised hunting by large groups, but individuals from hunting. Is that not the case?

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

I am not saying that paragraph 3 should not be in the Bill. That is a matter for the Committee, but it is a straightforward judgment. The paragraph is intended to catch those who let others use their dog, knowing that it will be used for unlawful hunting. The effect of that and how a prosecution would be brought under that provision is clear. The hon. Gentleman is testing the limits of the paragraph. That is proper and I do not argue with it, but there is a limit to its reasonableness and he is going beyond it.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

That is an interesting intervention. The Bill is not clear—if it had been, we would not have had this debate—and the Minister is introducing a new concept. Now the evil with which paragraph 3 is intended to deal is that of a person who lets others use his dog for hunting. If I understand him rightly, paragraph 3 is intended to stop people providing their dog or their hound—I apologise to my hon. Friend the Member for Mid-Sussex—

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

It could be a dog, but let us not get too hung up on that. The Minister is saying that the evil with which this is intended to deal is someone who lends his dog to others for use in hunting. That is a worrying interpretation, because it is not clear from the Bill.

Although it is right that one can look to the Minister for help with interpretation, the primary source in order to understand an Act of Parliament must be what is in the Bill. Paragraph 3 says:

``A person commits an offence if he knowingly permits a dog'',

not another person's dog—any dog. The paragraph is clear: it can catch a person who either lends his dog or hounds to others to be used for hunting, or catch a person going about a lawful activity. It is unfair, three-quarters of the way through the debate, after a long exegesis on these matters by my right hon. Friend the Member for Suffolk, Coastal, for the Minister to introduce a new concept. He is saying that what we are debating now is not at all what my right hon. Friend was talking about, but something different.

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

I am not sure whether the hon. Gentleman, for whom I generally have a great regard on these matters, has followed the debate as well as he thinks he has. His right hon. Friend understood the purpose of paragraph 3 and the effect of paragraph 23. When the hon. Member for Gainsborough reads his comments in Hansard, he may find that they show that he has not understood the effect of either paragraph 23 or paragraph 3. The debate has clearly been about letting others use one's dog in order to hunt.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

That is what the Minister tells us now, but if that is so, why is it not set out more clearly in the Bill? Surely, with all the advice available to him, the Minister is capable of having a paragraph drafted that, unlike the present wording, makes it clear that it designed simply to catch people who lend their dogs to others?

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 4:00 pm, 1st February 2001

The hon. Gentleman usually makes a valid contribution to debates, but he might find it helpful to read the explanatory notes. Perhaps then he would be wiser about the intention of the paragraph. There is no intention in any way to distract or mislead. The purpose of the paragraph has been clear throughout the debate.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

The Minister refers to the explanatory notes, and I now have them. I return to my point that the Bill must be clear, but we can come back to the argument in a moment. I repeat that, potentially, paragraph 23 is confusing.

I turn to how the courts would deal with the concept of whether the owner or person in control of the dog could conceivably have foreseen that it would chase a rabbit. Much law has been written about that. It is one of the most difficult and complex areas in criminal law and one on which the debate continues to the present.

The general principle is that:

``the court of appeal has endorsed the view that it is only when a consequence is foreseen as virtually certain that intention may be inferred.''

One may assume from that that, in the case about which we are talking, the dog owner or the person in control of the dog would be safe from a potential or successful prosecution because he could not foresee as virtually certain that the rabbit would be killed. However, the Court of Appeal went on to say that

``it did not accept that reference to foresight of a very high degree of probability was a misdirection, because it did not regard the difference of degree, `if there was one', between `virtual certainty' and `very high degree of probability' as sufficient to render the direction a misdirection.''

That may be gobbledegook to some of those in Committee. Let me try to explain it as plainly as I can.

The leading case law on foresight is that of Moloney, but that and subsequent cases

``have left the law in a state of uncertainty. It is unacceptable that, in addition to the clearly established definition of intention in the sense of aim or purpose, the law should permit `intention' to have some other, undefined meaning. Legal concepts must be certain in advance-``

Because of the present confusion in the law, there is no certainty as to how the courts would deal with the concept of foresight. There has been considerable argument one way and another. For instance, I shall quickly refer to ``knowledge''. I shall not go into it in any length, because I know that you, Mr. O'Hara, do not like me to talk about it. The textbook states:

``The first is actual knowledge, which may be inferred from the conduct of the accused. Where a person has actual knowledge of the circumstances in which he is acting, he is said to act intentionally in relation to them. Knowledge in the second degree consists of wilful blindness. Where a person realises the risks that are surrounding a circumstance may exist and deliberately refrains from making enquiries, the results of which he may not care to have, wilful blindness is a species of subjective recklessness with reference to surrounding circumstances and is often called connivance. It is equal in law to actual knowledge and normally suffices even when the statute uses the word knowingly.''

Sitting suspended for a Division in the House.

On resuming—

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough 4:48 pm, 1st February 2001

I was in the middle of a quotation, which I shall complete:

``It is equal in law to actual knowledge and normally suffices even where the statute uses the word `knowingly'. The first reported instance of the recognition of wilful blindness is Sleep''.

I want to continue the discussion on foresight by summarising the law concerning a person whose dog chases a wild animal, so can be found guilty of foresight:

``Where it was not the accused's aim or purpose to bring about a particular consequence, but it is established that he acted with foresight that that consequence was virtually certain to result from his conduct, the jury may infer from that degree of foresight that the accused intended the consequence. All the cases from Moloney on described above support this. However, Walker is authority that, while it is preferable for juries to be directed in terms of foresight of virtual certainty, it is not a misdirection to direct them that intention may be inferred from foresight of the very high degree of probability of the consequence resulting. On the other hand, despite some indication to the contrary in Hancock, the clear balance of the case law from Moloney on indicates that the inference of intention cannot be drawn from foresight of a lower degree of probability than very high probability.''

That is the law, but let me try to relate it in simpler words to what we are discussing.

The concept revolves around the alleged guilty mind of the person whose dog, and therefore who himself, is in contravention of paragraph 3. In trying to determine whether the gamekeeper or the person walking his dog is guilty, the court must decide whether he intended to commit a crime. The mens rea is his guilty mind; the actus reus is the act in breach of paragraph 3. The concept here is one of recklessness—acting in a way that is likely to lead to an actus reus, such as walking with a dog in a field that was likely to have wild mammals in it.

The leading case is of Caldwell, dating from 1979, which, although it initially dealt with criminal damage, is relevant to the schedule. In that case Lord Diplock decided that a person is reckless if, first, the act creates an obvious risk of property damage and, secondly, when he acts he has not thought about the possibility of the risk or he recognised the risk, but acts anyway. Therefore, he does not need to think about the risk to act recklessly—he does not need to think about the dog chasing the rabbit—to be guilty of recklessness and mens rea.

That interpretation of the law in this area was supported in a reckless driving case—Reid in 1989. If the driver did not think about the risk, he could still be convicted if the risk was ``obvious'' to any ``ordinarily prudent motorist''. I mention that case because the risk of the dog chasing and killing the rabbit is obvious to any prudent walker in the countryside. Therefore, would an ordinarily prudent man think that there was a risk of a dog chasing an animal? If he did, the dog walker would be guilty of recklessness if his dog chased the animal, even though he had not thought about it. Therefore, what is important is not what is in the mind of the dog walker, because the court cannot deduce that; it can deduce only what an ordinarily prudent man would assume. I am going through these cases carefully because I believe that, under present case law, it would be relatively easy for the prosecution to establish its case beyond reasonable doubt and, contrary to the assurances that we have had, for a conviction to be achieved.

It will be especially hard on children who take dogs for walks and do not think about the risk of dogs chasing animals. It may not be obvious to them, but they would still be guilty if it was obvious to an ordinarily prudent person. The leading case in that is of Elliot in 1983. Although the case would start in a summary trial, it could go up to the House of Lords. It would be decided from the case of Elliot, on what an ordinarily prudent man would assume would happen.

My conclusion on this summary of the law is that one does not have to be aware of the risk to animals of hunting by dogs on walks to be found guilty, if it was clear to an ordinarily prudent person that it was very likely that his dog would chase the rabbit.

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

I listened with care to the hon. Gentleman's argument. Can he tell me what public interest there would be in the Crown Prosecution Service prosecuting a child who was innocently taking a dog for a walk and that dog happened to run after a rabbit? No matter what bizarre interpretation of the law the hon. Gentleman advances, it is difficult to envisage that the CPS could possibly see a public interest in pursuing such a case. One may be able to find a way of arguing that there is a vague possibility of that happening, but in the real world it is so unlikely that it is unreasonable to suggest that we should determine law based on that sort of test.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

As I have said, the CPS would not necessarily bring the case: a private prosecution could be brought by an organisation such as the League Against Cruel Sports.

I am rather hurt by the Minister's description of my interpretation of the law as ``bizarre''. Although there are more distinguished lawyers than myself in the Room, I do not think that that accusation is justified. I have made great efforts to try to interpret the law correctly in line with the courts in recent cases.

If the League Against Cruel Sports brought a prosecution against a gamekeeper, the court could conclude that an ordinarily prudent person would assume that if one takes a dog walking in the countryside, it may chase and kill a rabbit. The Minister may think that LACS is unlikely to bring such a prosecution, but I have in my hand one of its recent policy statements which, having stated that it is opposed to the shooting of wild animals and birds for sport on the grounds that human entertainment is inadequate justification for the destruction of life, goes on directly to attack gamekeepers. It says that the LACS opposes pheasant and grouse shooting and the attendant slaughter of wild animals and birds by gamekeepers, and that there are 5,000 gamekeepers in Britain whose task is to preserve game birds long enough for their employers to shoot them out of the sky for recreation. It includes a great deal of material about how gamekeepers are deliberately killing wildlife.

Photo of Mr Tony Banks Mr Tony Banks Labour, West Ham

Perhaps the hon. Gentleman could help us by telling us the date of that information. Having heard it before, I took the precaution of asking LACS to provide a statement, which says:

``The League Against Cruel Sports did indeed briefly campaign against gun ownership. This was in 1987, after 14 people had died in the Hungerford massacre. Thirteen years later, the League's view is very different. It has no policy in favour of a ban on gun ownership.''

The hon. Gentleman may not be using outdated information, but if he is, he owes the Committee an explanation.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I must confess that I do not know for certain. I have a photocopy of the document. If the hon. Gentleman says that the current policy of the LACS is not to oppose recreational shooting, I must accept that. However, that does not invalidate my case that many people oppose recreational shooting and the practice of gamekeeping, and they could be relied upon to bring a test case.

I shall now return to the short argument that I had with the Minister earlier. I am glad that my right hon. Friend the Member for Suffolk, Coastal, who was out of the Room at the time, is now back in his place, because I am genuinely confused. Is the paragraph designed to deal with the person who allows his dog to be used for hunting, or could it catch the person whose dog goes hunting? The matter turns on the word ``permits''. The Minister advised me to read the explanatory notes, so during the break between sittings, I did so. The notes state:

``Schedule 3 makes it an offence to hunt wild mammals with dogs except in certain limited circumstances which are specified in the Schedule.''

It goes on to state that an offence may be committed

``under paragraph 3 by the owner, or person in charge or control, of a dog who permits another person to use it to hunt a wild mammal''.

The Minister is nodding. I agree that that is dealt with in the explanatory notes.

I cannot remember the relevant procedure, but as I understand it the courts are primarily concerned with the content of the Bill, rather than the explanatory notes. Perhaps I am wrong—no doubt someone will intervene if I am—but I believe that the explanatory notes are intended to assist not the courts' understanding of the Bill, but ours. The courts rely only on the wording of the legislation itself.

The Minister seemed to suggest in his intervention that my right hon. Friend the Member for Suffolk, Coastal was talking about a person who allows his dog to be used by others, but I believe that that is not correct.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal 5:00 pm, 1st February 2001

My hon. Friend is right—I find it difficult to read the Bill in any way other than the apparent way. According to the explanatory note, if I took out my wife's dog she could be to blame in some way. Does he agree that that is very odd and cannot possibly be right? The explanatory notes surely refer instead to those who are in control of a dog, whether it is theirs or someone else's.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I am grateful to my right hon. Friend for clearing up his thinking. We are trying to create clear law and the debate turns on the rather ambiguous phrase ``knowingly permits a dog''. When courts consider that phrase, will they think that it refers only to permitting someone else to use a dog or that it can also mean granting permission to the dog itself? Perhaps I am wrong, but in my view the paragraph is open to either interpretation.

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

I am grateful to the hon. Gentleman for allowing me to intervene again, so that I can clarify matters for him and the right hon. Member for Suffolk, Coastal. I know that the right hon. Gentleman does not hunt, but if he were to use his dog to hunt unlawfully he would be caught by paragraph 1. If he were to use his wife's dog to hunt unlawfully and his wife did not know, she would not be caught by paragraph 3. However, if his wife knew that he proposed to hunt with her dog and allowed him to do so, she might well be caught by paragraph 3.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I respect the Minister, because he makes an honest attempt to engage in the debate. [Laughter.] I mean that seriously. Many Ministers might take refuge in their notes and not seek to intervene. Often, that is the safest approach. He has given his interpretation and the courts will doubtless look at it, but it does not invalidate the point made by my right hon. Friend the Member for Suffolk, Coastal.

Paragraph 3 is drawn so widely, particularly in the light of the previous intervention, that virtually anyone could be caught if a dog does what is natural by chasing a rabbit and killing it. It is not necessary to set off with the intention of participating in an organised hunt. We have discussed the question of the wife, who is guilty only if she knows if my right hon. Friend the Member for Suffolk, Coastal intends to go hunting, which is fair enough. If she does not know, she is not guilty, but he is. Either way, one of them is guilty.

The Minister's defence seems to be that that is nonsense because the Government are simply trying to stop people going on organised hunts and there will never be a prosecution of a gamekeeper or anyone else. My right hon. Friend proved in his speech, and I tried to prove in my interpretation of the law, that the Minister is simply not right. I accept that it is unlikely that the CPS will bring such an action, but it is possible that some other person or persons will.

The Minister kindly wrote to me on 31 January, when I dealt with section 44 of the Magistrates' Courts Act 1980. His letter shows some of the difficulties that we are labouring under and states:

``Firstly, the mens rea required for aiding or abetting is an intention to render assistance to another person in the realisation that that other person may commit the offence of hunting. The offence of knowingly permitting does not require proof of a positive `intention to render assistance'. Rather, it is sufficient that a person knows that hunting is going to take place on his land and permits it (expressly or impliedly) to take place.''

That is the Minister's interpretation of ``knowingly permitting'', but is fairly widely drawn, because he said:

``it is sufficient that a person knows that hunting is going to take place''.

To return to the point made by my right hon. Friend and others, we are not dealing with a third person and in our discussion during the past few minutes we proved that a third person does not need to be involved. I believe that it would be possible for the courts to prove that an individual who was out walking knowingly permitted his dog to go hunting. Again, the Minister may want to return to that in his winding-up speech.

I want to deal lastly with the letter from Bill Swann of Deadline 2000, to which the Minister referred earlier and which contains an extraordinary admission. Paragraph 7 of the letter states:

``Deadline 2000's position on rodent control is clear. There is a genuine need here, with no obvious sporting component. Terriers are effective in locating, catching and killing rats in areas where other methods of control, such as shooting, are impractical. Terriers can enter the sub-floor space of hen-houses for example. Furthermore, there are serious welfare concerns surrounding the use of poisons. Although our preferred method of control is shooting where possible, we have very little evidence of the suffering that a rat caught by a terrier may or may not experience. In the light of present knowledge and given the unarguable need to control rodents, we accept that an exception to allow terriers to hunt rodents above ground is unavoidable.''

Deadline 2000 accepts that it does not have sufficient evidence on the sentient nature of rats, but it says of rabbits:

``the use of long-dogs, such as greyhounds and lurchers, to pursue and kill rabbits contains elements of sport and pest control. The pursuit is not a chase in the sporting sense: rabbits bolt from cover when disturbed and are rapidly overtaken by the dogs. However, we consider that the use of dogs in this way is wrong because the Burns Inquiry showed that dogs of this type do not kill their quarry effectively. We scrutinised the hare post-mortem reports and those of a previous study, representing more than 60 examinations. Our conclusion was, given the low body weight of some hares and thus their similarity to rabbits, that a rabbit caught and killed by a long-dog would suffer unacceptably.''

I do not understand why Deadline 2000 is so clear that despatching a rabbit is cruel and causes unacceptable pain, but that that is not so for rats. I thought that rats were one of the most intelligent creatures and capable of feeling pain equal to that of rabbits.

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

Order. I am not sure what relevance this part of the hon. Gentleman's contribution has to the substance of the amendment and paragraph 3.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

It has very little relevance, Mr. O'Hara, but I was trying my luck because I thought that it was an important point to make. I hope that we may have another opportunity to deal with it.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I do not want to suggest that my hon. Friend is wrong, but because it is difficult to follow the logic of those who are presenting this case, one cannot explain to country people why the schedule is written as it is. We, therefore, come back to an issue that is relevant to the matter we are discussing: the schedule will be seen to be an unacceptable and unenforceable way of achieving an end on which Parliament has decided. It is that to which my hon. Friend is drawing the attention of the Committee.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I am grateful to my right hon. Friend. We have had today a useful discussion of the issues in relation to paragraph 3. We have built up a case, which I believe has been acknowledged by those supporting the Bill, who have suggested that amendments will be tabled later. We have established that paragraph 3 could put an onerous burden on ordinary country people or those who are using the countryside for legitimate recreation.

I know that you do not want us to have a debate over rats and rabbits, Mr. O'Hara, but it is relevant to the extent that the dog, hound or lurcher makes no distinction between a rat and a rabbit. It is very hard on the gamekeeper to be placed in a situation where he is guilty of an offence in one set of circumstances but not in another when he has no control over how his own dog or lurcher hunts.

In a previous intervention, it was suggested that it was possible to control hounds and dogs in these circumstances. That may be true in certain circumstances, but not in these. My right hon. Friend made the point most effectively that it is wrong to prosecute someone for the behaviour of an animal that is not his own because he happens to be in control of it. The Minister says, ``We are not prosecuting the dog; we are prosecuting the owner'', but that does not get him out of trouble. Potentially, the owner can be successfully prosecuted and receive a £5,000 fine, and the dog can be destroyed for doing something that is entirely natural.

It is apparently not against the law to teach your dog to dance, ride a skateboard and all sorts of unnatural things.

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

Order. The hon. Gentleman knows that I have already ruled such allusions out of order.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I was coming to a peroration, Mr. O'Hara. Paragraph 3 will put an onerous burden on dog owners and we hope that the Minister, when he responds, will tell us that he is prepared to withdraw it.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

I want to contribute only briefly and strictly within your ruling on the paragraph, Mr. O'Hara. I am sorry to hold up the Minister, but he is here to answer questions, so he can take that supercilious look off his face.

It is on gamekeepers that this onerous burden will descend. We have had extensive discussions in earlier debates, which we will not repeat. It is those who are responsible for keeping the countryside clean, tidy and free from vermin who are most likely to fall into the clutches of the Bill. I urge the Minister to give an absolute undertaking that no keeper going about his ordinary everyday duties with his dog is likely to fall foul of the law, so that when the problems that have been carefully enunciated by my right hon. Friend the Member for Suffolk, Coastal and my hon. Friend the Member for Gainsborough come to pass, the courts will see that Parliament did not intend the clause to catch people in the normal pursuit of their job.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 5:15 pm, 1st February 2001

I have dealt with courtesy with all comments made in Committee. If the hon. Member for Mid-Sussex wishes to engage in personal comments across the Committee, he should consider whether he is more at risk than I am of getting them come back his way.

I shall deal with some of the points that have been raised in the debate. The Bill as drafted would make it an offence for a dog owner, or a person in charge or control of a dog, knowingly to allow another person to use it to hunt a wild mammal. The amendment would remove the offence. At our last sitting we had a lengthy discussion about what is meant by the terms ``knowingly'' and ``permit''. There is therefore no need for me to go over the same ground again, which I am sure you will appreciate, Mr. O'Hara, as you are not one of those who sleeps with a copy of ``Archbold'' under his pillow.

There is also the question why this provision is necessary, rather than relying on the aiding and abetting provisions of section 44 of the Magistrates'

Court Act 1980, which the hon. Member for Gainsborough helpfully drew to my attention at our previous sitting. Similar questions arose in respect of the previous group of amendments dealing with land. I have attempted to set out the reasons in a letter. I understand that the hon. Gentleman has read it and so I will not go into those issues.

To remove the offence of knowingly allowing one's dog to be used for illegal hunting would, I suggest, significantly weaken this schedule. It would also go against the wishes of Deadline 2000, whose policy was set out in schedule 3 and was endorsed by the Committee of the whole House. If I own a dog and, following the enactment of this Bill, I am asked to lend it for the purposes of hunting, it would be sensible for me to establish that the hunting in question was lawful. If I have been assured that only legal hunting is intended but, in the event, the hunting that takes place is illegal I would not be guilty of an offence as by no stretch of the imagination would I have knowingly permitted my dog to be used for illegal hunting. However, if I am told that the purpose of using the dog is to undertake illegal hunting and I still allow my dog to be used, I see no reason why I should not be guilty of an offence.

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

If the hon. Gentleman would allow me to continue a little more, I will give way to him with pleasure.

If I am told that the purpose of using the dog is to undertake illegal hunting and I lend it, I am committing an offence, which the Committee might decide should be covered by the schedule. I have been asked what would happen if I make no inquiries about the nature of hunting for which my dog is to be used. Clearly, if it is a one-off request and the hunting turns out, unknown to me, to be illegal, I have not knowingly given permission for illegal hunting, so I am in the clear. However, if I am aware that the person who is borrowing my dog regularly goes hunting and would use it for illegal hunting and I nevertheless continue to allow him to use the dog without asking any questions, I am putting myself at some risk and I may well in those circumstances be guilty of the offence.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

The Minister said that the provision was in accord with the wishes of Deadline 2000. Could he explain why he feels under an obligation to Deadline 2000?

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

I do not feel under any obligation to Deadline 2000. Let me make that clear. However, I am under an obligation to the Committee of the whole House, which made a decision to endorse a schedule which was the policy of Deadline 2000.

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

If the hon. Gentleman lets me finish, I will give way to him again. My position is quite clear. My obligation is to the House and this Committee, to ensure that we produce workable legislation. If the Members decide that they disagree entirely with particular aspects of the policy of Deadline 2000, then my obligation is to the House and in no way to Deadline 2000. I personally feel—speaking not as a Minister ex cathedra, but as a Member of the House—that there are aspects of this schedule with which I have some disagreements.

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

I may well, if the hon. Gentleman wishes me to, but the hon. Member for Mid-Sussex wished me to give way.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

The hon. Gentleman has not made it plain that this is not a Government Bill; it is a Deadline 2000 Bill. We are debating—[Interruption.]

I appreciate that the hon. Gentleman has to take orders from the Members sitting behind him. This is not a Government Bill; it is a Bill which has been drafted by Deadline 2000 and amended by excellent parliamentary draftsmen.

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

The Bill is a Government Bill. Let us be quite clear about that. The Government put three schedules before the House. It was and it remains a Government Bill. The policy set out in each of those schedules—as the hon. Gentleman knows well—reflected the interests of the Countryside Alliance, the Middle Way group and Deadline 2000. We offered the House an opportunity to consider which of those schedules it wished to endorse and it chose that of Deadline 2000. Therefore, until the House takes a different view, my obligation is to make sure that this schedule is passed such that it is workable and good law. That is the way in which I am approaching this.

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

I will give way once more and then I intend to make substantial progress.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I accept his comment and do not disagree. If, in the course of debate, the way in which the schedule operates is seen to be not what Deadline 2000 or anybody else intended, is it not perfectly open to this Committee to try to find a different way through? There appears to be sufficient concern about the way in which the provision would operate for us at least to look for a different wording and phraseology. I am not even pushing as far as the amendments. We could avoid what appears to be an unintended situation—for which the House did not vote. The House voted to give proper effect to the decision to ban hunting.

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

I do not agree with all that the right hon. Gentleman said, although I can accept some of it. It is the case that the House voted to ban certain forms of hunting. It is the case that during the course of this debate other issues have quite properly been raised. In due course, members of the Committee may feel that parts of the schedule merit amendment. That is a matter for them.

Let me also say—and I say this gently—that I realise what tactics Opposition Members are using: trying through a whole series of Bills, not just this one, to spend a lot of time debating. We have spent two sittings debating one amendment on one paragraph of the schedule. It is an enormously important schedule, which will have an impact on the countryside, those who live in the countryside and those who pursue hunting. We have already spent a long time debating it. We have 12 sittings in all, owing to the way the Committee is operating, and we have spent almost two of them discussing amendment No. 44. All that is in order, it is perfectly proper and this is an important area of the law. However, some hon. Members seem to be pursuing a wider agenda.

There is concern about the way in which Parliament has decided to timetable proceedings. As a result, the amendment has been used to discuss at great length issues that, to some extent, have become repetitive. Hon. Members on the Opposition Benches who have real concerns about the issues—it is right that they should raise them under the amendment—need to bear in mind that there are other amendments to be debated. I hope that we have time to discuss them. I want hon. Members to be able to persuade me to move on such matters.

Those who want the law at least to be workable should consider whether the tactics pursued are the right ones. If we make reasonable progress, Committee members who do not want a ban on certain forms of hunting may well find areas on which the Government, and indeed other Committee members, could agree. Therefore, I gently ask Opposition Members to consider the matter, and I hope that those who are advising them will consider whether their tactics are more about party politics than the wider issue of timetable motions—[Interruption.] I say that gently. There are issues on timetable motions that are genuine and we can debate them in the right context. However, we are considering some of the issues that might affect the countryside and I am not sure that the tactics being deployed are in the best interests of those who seek to support those who hunt in the countryside.

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

I have taken a lot of interventions, so if the right hon. Gentleman would forgive me, I will make some progress.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

On a point of order, Mr. O'Hara. [Interruption.] No, it is not a bogus point of order. Since the Minister has just indicated that he may be prepared to accept some amendments, would it be in order for the selection of amendments set down for debate to be altered after discussions with the Minister, to bring forward those which he may be prepared to consider this evening?

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

It is, of course, always a matter for Members to decide whether they wish to withdraw amendments or how they wish to deal with them. There are ways in which things can be done. Let me indicate, as I already have done, that there are issues, such as on the hunting of rabbits, on which I have a particular personal view that would not be the same as that of Deadline 2000. That is a matter for me and other Committee members.

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

Will the Minister please allow me to intervene?

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

I must make it clear that this is the last intervention I will take. I then want to make substantial progress.

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

I want to return to what the Minister said earlier about issues which he felt may make the Committee decide it wanted to change the Bill. It is not clear to me from what he said whether he feels that any further amendment to the Bill would have to come from supporters of Deadline 2000 who are serving on the Committee or whether he is himself prepared to move or to accept amendments to the Bill in his own name.

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

I must make it clear that throughout the debate I am not the advocate for Deadline 2000. I am not someone who is putting forward the policies of Deadline 2000. I am seeking to help the House reach the conclusion it wishes to reach about the law. If hon. Members tabled amendments that the Government felt would improve the schedule, I would say so—whether Deadline 2000 agreed with them or not. However, the Government may not take a view on such issues of policy. Hon. Members would then be free, on a free vote, to decide how they wish to deal with such matters. Let me make the progress that I wish to make.

The way in which the issue has been dealt with was criticised first by the hon. and learned Member for Harborough. He made some criticisms of drafting. The parliamentary draftsmen have experience, skill and ability beyond that of lawyers who practise in the courts, as I used to and he does. However, they are not infallible—[Interruption.]

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South 5:30 pm, 1st February 2001

Order. Several debates are going on, but I am interested only in the Minister's contribution.

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

Bills can certainly be improved, but we should always respect the skills of the parliamentary draftsmen. Some of the comments made by the hon. and learned Member for Harborough suggested that he was not displaying his characteristic regard for the draftsmen.

The right hon. Member for Berwick-upon-Tweed asked about the House voting for a ban on both foxhunting and hare coursing. A Committee of the whole House voted to ban all hunting with dogs, except in very limited circumstances. At that time, my right hon. Friend the Home Secretary clearly outlined the schedule's purpose.

The right hon. Gentleman raised several other issues. He suggested a case in which a gamekeeper went in pursuit of rodents and his dog then went after a rabbit. He said that the gamekeeper might be accused of intending illegally to pursue the rabbit. It depends on the evidence. A person may clearly intend only to pursue rodents and to act lawfully. His employer may tell him to hunt rodents, but rabbits happen to be hunted because of the dog's natural instincts. The gamekeeper is not likely to have committed an offence, because he did not intend to hunt rabbits.

Frivolous prosecutions, perhaps by some animal welfare groups, have often been mentioned. The Crown Prosecution Service can take over and discontinue any frivolous prosecution if it is in the public interest to do so.

An offence would not be committed under paragraph 3 unless the primary offence of hunting under paragraph 1 was committed and the dog's owner knowingly permitted the dog to be used in the commission of the offence. The primary offence would have to be committed, and then the offence set out in paragraph 3. It is not possible to have only one.

I agree with the right hon. Member for Suffolk, Coastal that we must have a law that works and that it is right for those who oppose this law to test the proposals. The cases set out by him and by the hon. Member for Gainsborough are theoretically possible but unlikely. We must bear in mind how we make law and that it is always possible for a lawyer to construct a means whereby it is theoretically possible to reach a bizarre conclusion.

However, the rules of interpretation of statute are clear. A court will consider the ordinary and natural meaning of a word. If that is not clear, it will consider guidance from outside. If the law is still likely to lead to an absurd conclusion, it will be the least absurd conclusion. The rules are well set out, and it is not likely that there will be prosecutions at the extreme end of theoretical possibility. The onus is always on the prosecution to prove its case beyond a reasonable doubt. We must consider what is realistically likely to happen.

I say to the right hon. Member for Suffolk, Coastal that we are not legislating against the instincts of dogs or of any other animal. People own dogs. The legislation's objective is to constrain people, restrain their activities and, through them, the animals that they own. The right hon. Gentleman also said that we should not make criminals of those who are not criminals. Each time that we pass a criminal law, we make criminal what was not previously criminal. Therefore, we make criminals of non-criminals most days. To follow his logic, that is a recipe for discontinuing this House altogether. I accept that there is always a debate about the balance between liberty and constraining activity that society may regard as unacceptable. That debate is perfectly legitimate and the right hon. Gentleman is perfectly right to advance the wider arguments. However, it is my submission that he is wrong to say that, as a general rule, we should not make criminals out of those who are not currently criminals.

The right hon. Gentleman then took us into the moral arguments. I do not want follow him too far down that path—at one point, we were in danger of arguing about how many angels can dance on a pinhead. What is clear is that the issue is not the morality of terriers, rats, rabbits or anyone else—nor is it whether people agree with or even understand the morality of a particular law. To comply with a law, a person does not need to understand either the morality of that law or the arguments that were advanced in passing it. We have a law in this country that we should drive on the left-hand side of the road; I do not know what the morality of it is, other than we cannot drive on both sides of the road at the same time. Sometimes laws have a moral basis, sometimes they do not. It is not necessary to understand the moral basis of a law in order to comply with it, but it is an obligation on all of us to comply with the law.

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

No, I have given way many times and I want to make progress.

The right hon. Member for Suffolk, Coastal also said that we were expecting dogs to know legal boundaries of land. We do not. We expect dog owners to control their dogs reasonably and to have some idea of boundaries. If the Committee will forgive me, I will not indulge in the debate about Winkie and Rufus, interesting though it may be.

The hon. Member for Stratford-on-Avon (Mr. Maples) asked about the offence being committed accidentally. One cannot commit the offence accidentally; there must be an intent to hunt illegally on the part of the human being doing the hunting. The hon. Gentleman also asked for the meaning of the phrase ``to be used'', but that is clear if one reads the rest of the phrase, which continues:

``in the course of the commission of an offence under paragraph 1''—

which is, hunting a wild mammal with a dog.

The hon. Member for Gainsborough asked who is prosecuted under paragraph 3. The person prosecuted is the person who

``knowingly permits a dog...to be used''

in the course of the offence of hunting. Paragraph 23 is broadly drafted so as to catch anyone who might be in a position knowingly to permit such use. I think that I have answered all the points raised.

The provision in paragraph 3, which the amendment would remove, has the merits of some sense. I have listened carefully to the arguments; they rely not so much on that paragraph, but on its impact on other parts of the schedule—hence the argument that developed about whether it would apply to a dog hunting rabbits, for example. There is a legitimate debate, to which I will merely allude, about whether rabbits should be included in the schedule. The arguments advanced on amendment No. 44 about the impact of paragraph 3 in respect of the hunting of rabbits were very persuasive and well put. They were less persuasive when applied to foxes or other animals, but certain elements had an impact on me. I shall carefully examine the way in which the paragraph will affect other parts of the schedule.

However, there is a sensible argument for paragraph 3. It is for the House to decide whether it wants to endorse the policy behind it. I simply say that there is logic to it. To remove the paragraph would weaken the effect of the schedule and run contrary to the spirit of the vote taken in Committee of the whole House on the hunting of foxes. In the light of that, and given my somewhat conciliatory comments in respect of some parts of the schedule, I hope that the hon. and learned Member for Harborough will consider withdrawing the amendment.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

As those winding up traditionally say, it has been an interesting debate. I am the first to recognise that the Minister is a very attractive advocate—I mean to describe his advocacy rather than the Minister himself. It is when a Minister is at his most conciliatory that those of us who feel the noose tightening around our necks need to be most careful.

One thing that the Minister said a moment ago made me pause for thought. It was when he mentioned acceptable amendments. It is interesting that here we are, two or three months into the life of this Bill, and the Government—in the person of this most attractive Minister—start talking about acceptable amendments. We had heard nothing along those lines either a fortnight ago in Committee of the whole House or on Second Reading—[Interruption.] I do not think that it is an excuse as the Minister could not have made that remark earlier. It is only when we are discussing amendments that the Minister can talk about acceptable amendments. The issues that we have described today have been staring at us since the Bill was first published in the autumn. It is regrettable that, until now, nobody has thought to mention acceptable amendments.

As the Minister has mentioned acceptable amendments and has ticked us off for spending today discussing amendment No. 44, I would ask him to bear in mind the following points. Thanks to the Government's massive majority, the Bill will be reported to the House today week—on 8 February at 6 o'clock. Those of us who were in the Chamber this afternoon know that the Leader of the House announced the business for the next two weeks—the first week's business is set in stone, the second week's is provisional—and made no mention of the Bill being considered on Report and Third Reading. It follows, therefore, that the Bill will not be considered on the Floor of the House before 26 February, because we have to allow for the half-term holiday that this Government have graciously provided. That gives the Minister plenty of time—and I hope that he will be able to do it between now and Tuesday—to produce a list of acceptable amendments, either in detail or as general topics. If he were to do so, he might save himself and all of us a considerable amount of heartache.

We are, I candidly confess, deeply frustrated that the Government have decided to shut down the Bill in Committee on 8 February. The fact that we have spent an entire day, in order, discussing amendment No. 44 suggests that many other amendments that need to be discussed will not be debated. That is an affront to our constituents.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Will my hon. and learned Friend not push the matter exclusively, as it is possible that the Minister will allow us an alternative? If he finds it difficult to say what he considers to be acceptable amendments because that would pre-empt his response to them, he might consider tabling an amendment to the programme resolution. Now that we do not have to finish as quickly as had been hoped, we might possibly sit later and longer, which would enable us to get through all the debates. I am sure that Opposition Members would be happy to do that.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

My hon. and learned Friend has dealt with half the point that I wanted to make. If the Minister were to make it known—either publicly or in private conversations—in respect of which provisions he would be prepared to propose or concede amendments, and if for one reason or another the Committee sittings could not be extended for a further week, we might be prepared to accelerate the consideration of some groups of amendments in order to reach the ones on which he was prepared to concede. In order to do that, however, we would have to know which provisions he has in mind, as so far there has been no sign of concession.

Photo of Edward Garnier Edward Garnier Shadow Attorney General 5:45 pm, 1st February 2001

As the matter is pre-vote, neither I, as the Member for Harborough, nor any Opposition Member who represents constituents and individual interests, can possibly reach a sensible decision about the progress of the Committee until we know what amendments the Minister has in mind.

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

No amendment to the programme resolution was tabled, and it can be taken by all that it was agreed by Conservative as well as Labour Members.

issues. By acceptable amendments, the Government mean amendments that will make the schedule more workable. Other issues may be more acceptable to the Committee as a whole, as opposed to just the Government, that relate to the background issues of policy set out by Deadline 2000.

We have made little progress over the past few sittings because of the very long speeches that have been made. I can see why Conservative Members may have found that desirable in the past, but it does no service to those who are concerned about hunting.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I do not want to have a spat with the hon. Gentleman because I am rather fond of him.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I never lie. It would be a pity if the hon. Gentleman and I fell out over this. It seems to me that if it had not been for our discussions on amendment No. 44, the Minister would not have been able to make the point that he has just made, because he would not have heard the arguments put forward by the proponents of the amendment. That also applies to the hon. Member for West Ham, who has been affected by the arguments about rabbits. He candidly admitted that he wanted the Bill to be amended with regard to rabbits. He is a passionate advocate of the banning of hunting. We all know that. However, it is extremely interesting to hear that he now takes a different view about the utility of the Bill as it is currently drafted in this particular. He would like amendments to be tabled on Report or Third Reading either by the Government or by an hon. Member.

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

Order. The Chair has been very patient with this debate. I remind the Committee that we are, to use the hon. Gentleman's own words, winding up the debate on this particular amendment. There has been sufficient debate on the possible acceptability of other amendments in the future. We are constrained by time, because the House has decided that the Bill should be reported on 8 February. If any hon. Members are concerned about the possibility of producing acceptable amendments, the best procedure would be to dispose of this amendment as quickly as possible and proceed to dispose of other amendments in order to leave time for any acceptable amendments that may be tabled.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Given your strictures, Mr. O'Hara, I do not want to delay matters by taking any further interventions.

Photo of Michael Foster Michael Foster Labour, Worcester

Will the hon. and learned Gentleman give way?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

If the hon. Member for Worcester can assure the Chairman that his intervention is germane and tied to amendment No. 44, we are in business and I shall give way, but if he cannot, he may be ticked off.

Photo of Michael Foster Michael Foster Labour, Worcester

The point Labour Members are making is that the debate on this amendment has been prolonged. Does the hon. and learned Gentleman agree with me and with an hon. and learned Member of the House that

``If one cannot make one's point in a few moments, there is probably no point in making it''?—[Official Report, Standing Committee C, 28 January 1998; c. 132.]

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I do not know, Mr. O'Hara, whether that intervention was in order.

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

I rule that it was germane in that there has been diffuse discussion on this amendment.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Then I will not diffuse the discussion further by condescending to deal with that intervention.

During of an earlier intervention, the Minister placed great reliance on the Protection of Badgers Act 1992. One of the complaints of those on our side of the argument is that the schedule places an unfair burden on the potential defendant. The Minister said that we should not complain about that because that just mirrors the provisions of the 1992 Act, as though that were a satisfactory answer.

The Minister kindly gave me a copy of that Act and having read it, I can say that the Minister's point was entirely false. Its drafting, quite apart from its title, could not be more different from that of the Bill. The Hunting Bill, according to its proponents, advances the welfare of animals. The title of the Protection of Badgers Act gives the game away: the legislation is specifically and transparently about the protection of badgers. If the Bill is, as the Minister claims, a mirror image of that Act, it should be called not the Hunting Bill, but the ``Protection of Wild Mammals Bill'', the ``Protection of Foxes Bill'' or the ``Protection of Red Deer Bill''.

To take the Minister further into the legislation, schedule 1 makes it an offence to hunt a wild mammal with a dog. Section 1 of the 1992 Act goes straight to the point and states that

``A person is guilty of an offence if, except as permitted by or under this Act, he wilfully kills, injures or takes, or attempts to kill, injure or take, a badger.''

The use of the expression ``wilfully kills'' is an immediate and obvious difference. Section 1(2) of that Act states that

``If, in any proceedings for an offence under subsection (1) above consisting of attempting to kill, injure or take a badger, there is evidence from which it could reasonably be concluded that at the material time the accused was attempting to kill, injure or take a badger, he shall be presumed to have been attempting to kill, injure or take a badger unless the contrary is shown.''

It is interesting that whereas section 1(2) of the 1992 Act sets out a prima facie set of facts to be established by the prosecution and makes it available to the defendant to show an innocent purpose, the wording of the Bill, which the Minister says mirrors the Act in its exceptions clauses, places upon the defendant the need not to show something but to prove it. Those are two separate concepts.

Section 2 of the 1992 Act again brings the issue of cruelty to the fore. It states that

``A person is guilty of an offence if—

he cruelly ill-treats a badger;

he uses any badger tongs in the course of killing or taking, or attempting to kill or take, a badger''.

Section 3 deals with interference with badger setts:

``A person is guilty of an offence if, except as permitted by or under this Act, he interferes with a badger sett by doing any of the following things—``.

Specific activities are then set out so that courts, defendants and police know what they are. Furthermore, the legislation encompassess:

``intending to do any of those things or being reckless as to whether his actions would have any of those consequences''.

The Act then sets out the general exceptions—which I concede are comparable to those in the Bill, but which are the nearest that the Minister can get to drawing a parallel between the schedule and the Act. The Minister, on behalf of the supporters of the Bill, should not rely on the Act in that way.

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

The point about the Protection of Badgers Act was that it stated basic offences and, elsewhere, defences. That is why it is being relied on. Although I broadly accept the hon. and learned Gentleman's points, I hope that I am not being unfair to him by saying that he has basically missed the point about why I mentioned that Act. I hope that I can prevent him from having to go any further on that point. I broadly accept the points that he has made—[Interruption.]

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I am most grateful to the Minister. The groans may have prevented hon. Members behind him from hearing that concession, for which I am grateful because it allows us to make further progress.

Confusion has been evident in today's debate and I regret to say that, despite the attractiveness of his advocacy, the Minister has been unable to clear it up. Confusion remains about the genesis of the Bill—and therefore about paragraph 3, which we want deleted from it.

It is not unknown for Governments of both colours to hand out Bills to private Members for Fridays. This must be the first occasion, however, on which an outside organisation has handed a Bill to the Government, who are a recipient of the handout. That explains why we have had to have today's debate—to expose and to examine the confusing nature of the Bill and of paragraph 3 in particular.

The confusion is not cleared up by Mr. Swann's letter, which was attached to the letter—dated 1 February—to my hon. Friend the Member for Gainsborough. Mr. Swann was a representative of Deadline 2000, which drafted the schedule—

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

Order. I am being extremely patient with the hon. and learned Gentleman, but so far he has alluded little to the amendment that we are debating and even less to paragraph 3, which the amendment proposes to remove.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

During the course of his arguments in support of paragraph 3, the Minister referred to Mr. Swann's letter, as did other hon. Members. I will not go through that letter in detail and never intended to do so. However, if one does read it—and I dare say that you, Mr. O'Hara, will have read it because you, as Chairman of the Committee, will have been sent a copy—one realises that it is riddled with intellectual, moral and philosophical confusion. If Mr. Swann's writing has anything to do with the writing of the schedule, it surprises me not a bit that paragraph 3, which we want deleted, is the subject and cause of such confusion.

The right hon. Member for Berwick-upon-Tweed began proceedings this morning by asking the Committee to bring precision to its deliberations so that the intention of Parliament is not betrayed. He supplied the example of the gamekeeper and the ``domesticated hound'' going for a walk. Nobody on the Government Benches—certainly not the Minister, or the hon. Member for West Lancashire, who was the only Member consciously to support the Bill today—has been able to deal with the issues raised by the right hon. Gentleman, which is regrettable.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

Did my hon. and learned Friend use the phrase ``domesticated hounds''? He will know that there is no such thing as a domesticated hound. Anyone who has walked a hound puppy knows that.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I did use that expression. My hon. Friend was unable to listen to the right hon. Member for Berwick-upon-Tweed when he said that one of the Bill's consequences will be that the public, encouraged by the Royal Society for the Prevention of Cruelty to Animals, will take hounds into domestic life because they cannot face the fact that they will otherwise be shot or destroyed. A hound cannot be domesticated—

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Or a beagle. If a hound in private ownership is taken for a walk, it will behave as it naturally behaves and chase any wild mammals that it sees. That brings me directly to the point made by my right hon. Friend the Member for Suffolk, Coastal—that the paragraph will legislate against the laws of nature, which cannot, as he correctly stated, be altered in a sensible way by the Committee and this paragraph.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I hoped that my hon. and learned Friend would continue—in order. The dogs do not behave in this way just because it is natural to them, but the breeds for whom it is particularly natural will be difficult to continue. Those breeds may have to be an aim of conservation in future, otherwise they will cease to exist.

Mr. Mike Hall rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put:—

The Committee divided: Ayes 15, Noes 9.

Division number 4 Adults Abused in Childhood — Schedule 3 - Hunting with Dogs: Prohibition

Aye: 15 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Question put accordingly, That the amendment be made:—

The Committee divided: Ayes 8, Noes 16.

Division number 5 Adults Abused in Childhood — Schedule 3 - Hunting with Dogs: Prohibition

Aye: 8 MPs

No: 16 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I beg to move amendment No. 12, in page 20, line 5, leave out `level 5' and insert `level 1'.

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

With this it will be convenient to discuss the following amendments: No. 13, in page 20, line 5, leave out `level 5' and insert `level 2'.

No. 14, in page 20, line 5, leave out `level 5' and insert `level 3'.

No. 15, in page 20, line 5, leave out `level 5' and insert `level 4'.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The amendments deal with the appropriate level of the fine that the Government want to import into the Bill.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Would my hon. and learned Friend care to remind the Committee that this is a timetabled Committee with an end date in which the Government Whip has called for a closure? Is not that a unique and dangerous precedent?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

My right hon. Friend is right. I had thought that the conduct of the Government Whip stood as a condemnation in itself and I was not going to rub his nose in it, but it is entirely regrettable that the democratic process is being crushed and impaled upon the altar of new Labour to deny our constituents the right of free expression through their Members of Parliament—[Interruption.].

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

Order. I point out that the closure motion has to be accepted by the Chairman, who is entirely neutral, as I hope that I have demonstrated in my chairing of the debates thus far. I have made it abundantly clear on several occasions that dilation in debates is becoming excessive and repetitious.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Neither my remarks nor those of my right hon. Friend the Member for Suffolk, Coastal had anything whatever to do with criticising you, Mr. O'Hara. Our criticism was clearly aimed elsewhere, and those against whom it was made know that it was well made.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

No. I want to discuss the amendments.

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

On a point of order, Mr. O'Hara. Is it right for one member of the Committee to criticise another member of the Committee who cannot answer for himself, especially given that the record will show the extent to which there has been a filibuster during the course of the debate?

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

Order. I hear what the right hon. Gentleman says.

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

On a point of order, Mr. O'Hara. In the light of the right hon. Gentleman's comments, I wonder if he could give the Committee guidance on an important point—that is, the entitlement of a representative of the Government Whips Office to speak in the course of the debate. The right hon. Gentleman suggested that the hon. Member for Weaver Vale cannot defend himself. Would you confirm, Mr. O'Hara, that although the hon. Gentleman is not entitled continually to participate from a sedentary position—as he has persisted in doing—if he wanted to get up and make a speech it would be perfectly legitimate, albeit unusual?

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

Order. I must say that any sedentary interventions by the hon. Member for Weaver Vale have not impinged upon my consciousness.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I do not want to upset the hon. Member for Weaver Vale—I am sure that he has plenty of problems already. Thanks to the hon. Member for West Lancashire, we already know about the problems of his dog.

When the right hon. Member for Cardiff, South and Penarth (Mr. Michael) intervened, I was about to try to persuade the Committee of the good sense of the amendments.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

On a point of order, Mr. O'Hara. I believe that an attack was made on you by the right hon. Member for Cardiff, South and Penarth, who said that filibustering had taken place. Would you confirm that if any member of the Committee were to attempt that, they would be ruled out of order?

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

I noted what the right hon. Gentleman said.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Let me try again to begin as I had hoped, by discussing amendments Nos. 12 to 15, which deal with the appropriate level of fine that the offence of hunting a wild mammal with a dog will attract. Paragraph 5 states:

``A person guilty of an offence under paragraph 1, 2, 3, or 4 shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.''

My hon. Friend the Member for Aylesbury (Mr. Lidington) asked the Home Secretary two written questions, the answers to which—nos. 162 and 163—were provided on 18 January by the Minister of State, the hon. Member for Norwich, South (Mr. Clarke). My hon. Friend asked the Home Secretary

``if he will list the offences punishable by a fine at (a) level one, (b) level two, (c) level three, (d) level four and (e) level five on the standard scale.''

The Minister of State replied:

``The information is not available in the form requested and could be produced in that form only at disproportionate cost.''

The concept of proportionality is therefore immediately brought into the discussion. The hon. Gentleman continued:

``However, I am placing in the Library a copy of a booklet entitled `Criminal Statistics, Volume III, Part 1, Appendix 1, Part 1, For Court Proceedings and Cautions—2001 CODES'''—

it is a fine document—

``which lists, for each offence separately identified, the maximum sentence in both magistrates courts and the Crown court. The document does not list all offences since many, mainly summary, offences are grouped and their maximum sentences are not, therefore, separately identifiable.''

My hon. Friend the Member for Aylesbury also asked the Home Secretary

``if he will list for the most recent year for which figures are available, for the number of convictions for each criminal offence which were punished by fine at level (a) one, (b) two, (c) three, (d) four, and (e) five on the standard scale.''

The Minister of State replied:

``Limited available data, taken from the Home Office Court Proceedings Database are given in the table.

Offences are grouped together by using the main Home Office classification definition, as produced within the more detailed `Criminal statistics, England and Wales, Supplementary tables', a copy of which I have placed in the Library. To try to identify by individual offence would be disproportionate to cost.''—[Official Report, 18 January 2001; Vol. 361, c. 360-62W.]

For ease of reference and greater accuracy, I have obtained a copy of that schedule, which is a four-page document. There are matters in it to which it is sensible to draw the Committee's attention, and which fall within the ambit of the right and proportionate criminal penalty for hunting a wild mammal with a dog. I pause simply to ask the Minister why the matter is dealt with through summary court proceedings and a fine, rather than imprisonment, given that the proposers of the Bill consider hunting such a heinous offence. If an offence is committed under the Protection of Badgers Act 1992, the defendant can be sent to prison for up to six months. Other animal welfare legislation provides for a custodial sentence in addition to, or in substitution for, a financial penalty.

There are a number of other practical implications that are worth discussing briefly. According to the table that the Minister of State, the hon. Member for Norwich, South, provided, which can be found in the Library, 992,420 offences—almost a million cases—attracted a fine in summary courts. I cannot say whether they involved a million people, because I do not know whether individuals are separated out or whether an individual is multiplied by a group of offences, but I can provide the Committee with the following analysis.

Of those nearly 1 million instances of fining, 824,228 were at £200 or under; 135,485 were at level 2—that is to say, between £200 and £500; 28,445 were at level 3—that is to say, between £500 and £1,000; 2,182 were between £1,000 and £2,500, which is level 4; and only 637 were between £2,500 and £5,000, which is level 5. Only 443 cases involved a fine in excess of £5,000.

There is a lesson to be drawn from that. What is the point of setting level 5 in paragraph 5 at that level if historically—we are looking at the latest figures, which are for 1999—the use of level 5 fines is so rare? There were only 637 cases at level 5 out of a total of nearly 1 million. That suggests to me that the use of level 5 fines for summary offences in British law is so rare that a level 5 penalty is not appropriate for this offence.

It is worth bearing in mind that a number of serious offences have been dealt with by fines and at levels well below level 5, the level that the offence of hunting attracts. I go to the third category of offence to be found in the list of offences provided by the Minister of State at the Home Office. It is offence No. 3—``Threat or conspiracy to murder''. One might think that anyone found guilty of a threat or conspiracy to murder was likely to face a long term of imprisonment, but in 1999, 14 people were fined for that offence. Eight of those people received a fine of up to and including £200, five received a fine of over £200 but under £500 and one was fined over £500 but not in excess of £1,000. We do not know from the schedule what the mitigating circumstances were or what the facts were behind the offence or relating to the individual defendants, but not one of those 14 cases of threat or conspiracy to murder attracted a fine at level 4, let alone level 5.

Let me take the Committee to some other examples. It appears that in 1999 six cases involving death by dangerous driving were drawn to the attention of the summary courts. Only two of those six were in the level 5 category—between £2,500 and £5,000.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs) 6:15 pm, 1st February 2001

This was an issue on which I was momentarily cogitating and I wondered whether we would have an answer to the dilemma. My hon. and learned Friend appears to be providing it. Does he share my sense of stupefaction, if not of distaste, that the Government should propose a penalty for a breach of the Bill greater than that likely to be meted out to someone who commits the offence of dangerous driving which, unlike this offence, could imperil human safety?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I am always delighted when my hon. Friend cogitates. It is good for all hon. Members to cogitate, because it suggests that they exist.

I shall not wholly answer my hon. Friend's question because he may want to elaborate on it later. However, it is fair to say that simply because the level 5 fine is in the Bill does not mean that the courts will fine up to £5,000 in every case. My hon. Friend is right and given that a whole host of serious offences has attracted fines in the past and certainly in 1999 not at level 5, level 4, level 3 or level 2, but only at level 1, why do the Government—or Deadline 2000, whose policy seems to be wrapped up in the Government's Bill—believe it appropriate to set the level of fine in paragraph 5 at level 5?

Other examples may help us reach an understanding of the proper level of fine under the Bill. The table supplied by the Minister records 34 cases involving wounding or other acts endangering life, but none of those offences incurred a fine exceeding £500. In 25 of those 34 cases, the fine was at the level of £200 or less. That is another example of serious offences against the person—wounding or acts endangering life—for which the courts thought it appropriate to issue a fine at level 1 or level 2.

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

Does my hon. and learned Friend agree that in assessing the appropriateness of otherwise of the level 5 fine on the standard scale, it behoves the Committee to think ahead to the consequences of non-payment of that fine? Does it seem likely to my hon. and learned Friend that someone who is subject to that fine but unable to pay it and obliged therefore to be detained at Her Majesty's pleasure, would or would not be eligible for the early release scheme?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

My hon. Friend is ingenious and has clearly been doing some more cogitation. If he will allow me relief from that intervention, I would be happy to take it because I do not want to take that line for the moment, not least because I see you, Mr O'Hara, beginning to look interested.

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

The hon. and learned Gentleman is very perceptive.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Could I have that in writing, please?

I want to turn to another category of offences, which touches on the person but does not endanger life. There were 4,369 cases of wounding not endangering life and, of those, only one was fined at level 2, which is between £250 and £500; 3,496 cases were fined at £200 or less. Again, we see that the huge proportion of serious offences against the person attracts fines at a very low level.

Turning to a different aspect of the criminal calendar, the Minister suggested that only two people were fined for gross indecency with children. Of those, one was fined less than £200 and the other between £500 and £1,000. Nine people were fined for cruelty to or neglect of children. Of those, eight were fined less than £200 and only one was fined between £500 and £1,000. Seven people were fined for unlawful sexual intercourse with a girl under 16 and all were fined less than £500. One case of unlawful sexual intercourse with a girl under 13 attracted a fine of less than £200. Taking that example alone and forgetting the cases of malicious and unlawful wounding of people, endangering life and so on, a policy that decides that it is appropriate to fine someone only £200 or less for unlawful sexual intercourse with a girl under 13 does not sit well with a policy that requires a person guilty of an offence under the schedule to be fined at a level not exceeding level 5. Something is out of kilter and disproportionate.

Turning to another aspect of the criminal code, seven people were fined for criminal damage endangering life, of whom six were fined less than £200 and one was fined less than £500. In 505 cases, cruelty to an animal was involved, which is perhaps the nearest we can get to anything in the schedule. Of those 505 cases, only 332 attracted a fine of less than £200 and a measly six attracted a fine at level 5. Only six of the 505 cases that came before summary courts in 1999 attracted a level 5 fine. A huge number of summary motoring offences are dealt with in the Minister's answer—565,258. Only 62 of more than half a million motoring offences attracted a fine at level 5 or between £2,500 and £5,000.

I am not surprised that there are a number of cases under poaching and game legislation, but I am surprised that of the 300 or so fines imposed, all were less than £200 save for 34 cases in which the fines were between £200 and £500. Even in the world of gamekeeping, poaching and protection of country sports, fines are very low.

In a similar if unrelated field of criminal activity, there were 109 offences under protection of wild birds legislation, of which 46 attracted fines at level 1, 56 at level 2, five at level 3, two at level 4, but not one at level 5.

I have selected only a few of the examples most relevant to my case. Of a whole host of offences, ranging through failing to surrender to bail, perjury, abstracting electricity, theft of pedal cycles, offences concerning hand carts and miscellaneous licensing offences, those that have attracted fines at level 5 when they are available can be counted on the fingers of a few hands. We must analyse the evidence of how level 5, level, 4, level 3, level 2 and level 1 fines have been treated in the past and use it sensibly so as not to overload a draconian Bill with draconian penalties. If we can do anything to mitigate the worst effects of the Bill as it progresses through this House, let alone the other place, we shall have done the public a service.

It may be germane to draw the Committee's attention to one or two other pieces of legislation, so that it has some idea of how levels of fine have been drawn up in the past. The Protection of Animals (Amendment) Act 1954 and the Animals (Cruel Poisons) Act 1962 both have fines at level 3, and the Agriculture (Miscellaneous Provisions) Act 1968 attracts fines at level 4. Section 3 of the Road Traffic Act 1988 gives careless driving a level 4 fine; it is not until dangerous driving under section 2 of the 1988 Act that there are level 5 fines. Both careless and dangerous driving could lead to death or maiming and serious injury of members of the public.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 6:30 pm, 1st February 2001

In the Hansard report of the Wild Mammals (Hunting with Dogs) Bill—colloquially known as the Foster Bill—the hon. and learned Gentleman said:

``I shall be brief. If one cannot make one's point in a few moments, there is probably no point in making it.''—[Official Report, Standing Committee C, 28 January 1998; c. 132.]

Do the comments that he is making at great length have a point?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

That is extremely witty, but the point was made earlier by the hon. Member for Worcester (Mr. Foster). Repeating a fair point does not make it any better. It is a pity that the Minister has lowered himself to take part in such an exercise, but if he wants to, fair enough. No doubt he will have the opportunity to let the Committee know if he does not think that my points are serious. I am sorry that he has taken the view that he has, as he is normally a patient and careful man. He will have listened—he may even have read—the document that one of his colleagues at the Home Office supplied to the House. It contains further information that adds weight to my point.

We are dealing with several amendments to paragraph 5. My points are not out of order. They may be boring, but listening to other people's arguments can be boring—

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

Order. The Chair has been listening with fascination, finding that all the comments are in order and that they are building up—albeit at some length and in detail—a coherent case.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

We are lucky, Mr. O'Hara, that you, the Minister and I are highly unlikely to be caught by the provisions of the Bill were it to become an Act. However, some people will want to know why Deadline 2000, the policy of which is represented in the schedule, think them appropriate. The only people who can speak on its behalf are Labour Members.

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

I do not want the hon. and learned Gentleman to be misled in any way. The penalty inserted into the schedule was inserted at the behest of the Government, not Deadline 2000. The original proposal was for six months imprisonment. The Government took the view that a more proportionate penalty was needed.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

That is quite an interesting intervention. If the Minister will not tell us which amendments he is prepared to accept during the next three sittings, I would be grateful if he would tell us which paragraphs of the schedule are wholly and exclusively the work of Deadline 2000 and which have had some additional work by the Government or Home Office lawyers. He says that the level of fine in paragraph 5 is the Government's decision. Some of the provisions are the Government's, some are Deadline 2000's, and we are entitled to know which are which.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

This is a difficult matter for the Minister to give a detailed answer on off the top of his head, but he has most helpfully written to us on several occasions, that correspondence including an epic and completely unintelligible letter from a Mr. Swann. Would it not, therefore, be appropriate if he were to allow his officials the time to sort out the differences that my hon. and learned Friend has brought to the Committee's attention? He should let us know the full extent of Deadline 2000's influence on the drafting of the Bill.

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

Deadline 2000 produced a draft schedule. It was examined by parliamentary draftsmen, who made some minor technical amendments. The main issue on which we took a view was that of the penalty.

I appreciate that there may be other pressing matters, but perhaps the hon. and learned Member for Harborough would like to listen to my reply. The penalty was the primary matter on which we took a view. The rest of the schedule is largely the work of Deadline 2000, with the exception of the insertions made, for technical reasons, by parliamentary draftsmen.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

That is an extremely helpful answer, but will the Minister clarify it in writing? I appreciate that he cannot answer the questions off the top of his head now, but it is important for us to work out which parts of the Bill are the work of Deadline 2000.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

That is characteristically generous and helpful of the Minister, and I am grateful to him.

I will shortly draw my remarks to a close. However, I want to stress how important it is that paragraph 5 of the schedule is properly thought through and dealt with. I hope that those both who disagree with me and those who agree with me will find it in their hearts to speak their minds, so that those whom we represent and those who are Members of this honourable House but not of the Committee can have some greater understanding of what it is that they have voted for.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Amendment No. 12 could easily appear to be a means of lowering the penalty so as to make the offence appear to be an immaterial action. Conservative Members should consider that interpretation seriously. The penalty has been set at such a high level because those who are proposing the Bill wanted to make it clear that the measure could not easily be ignored. In that sense, I understand the reason for the penalty, but it is necessary for those of us who believe it to be draconian to explain to the Minister why we believe that.

My hon. and learned Friend has pointed out that even in cases when the level of the fine is as high as this, few such fines are imposed. He has also pointed out that there are few offences for which so great a fine is suggested. Level 5 is an unusual level for people to be fined at. The Bill's promoters should explain why they have chosen such a level. There is a joint requirement, and I would like to explain why I think that this is too high a level, and why I do not think that it is necessary to underline the importance of the Bill. The fact that I do not agree with it does not mean that I do not understand that, if the House decides that it should become law, we should ensure that it is obeyed. However, we do not need draconian penalties; we need people to recognise that the law will be enforced and that hunting is a criminal offence. I am sorry that it should be a criminal offence, because that, too, will cause problems. However, I think that the House has decided, at least in principle, that it should be.

I realise that if the fines were set at a lower level, the Minister may at some future date have to say to Parliament that fines had been set at a level that seemed reasonable and comparable with other legislation but that they had not worked, but we are starting at such a high level of fine. Perhaps I should again try to be helpful. Such high fines suggest that, in comparison with a range of other activities, hunting is so heinous that it needs fines to be set at a level that one would expect to be reserved for activities that are universally felt to be much more serious.

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

I am listening carefully to the right hon. Gentleman. He should bear in mind the fact that comparable animal welfare provisions carry terms of imprisonment of between three and six months. Contrary to some editorials in The Daily Telegraph, which have stridently suggested that the penalties are draconian, they do not include imprisonment. Although the fines are heavy, the absence of imprisonment makes the penalties in this animal welfare provision somewhat lighter than in comparable provisions.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I thank the Minister for his comments, but I was just about to deal with that point. I think that I know why imprisonment is not included. It is because the Government know very well that if someone were imprisoned, the anger that is already immensely sharp in the countryside would boil over. I remind the Minister of the imprisonment of Father Tooth in the 19th century, which wholly destroyed the then Government's illiberal legislation. That is why such a sentence is not included in the Bill. Instead, heavy, disproportionate fines will be imposed because the Government's advisers do not want anyone to be imprisoned.

The Government are caught in a pincer, but I can suggest a way out. They should admit that Britain is a law-abiding country and that people in the countryside are law-abiding. They should say, ``We recognise that people feel strongly about the matter, but we do not wish to affront them by suggesting that they will not obey the law. Some, however, will break the law, and we want to ensure proper enforcement. That enforcement will be accompanied by a fine that is naturally comparable. We reserve the right to increase the fine if we are wrong, but as a gesture to country people generally, we will admit that we may have been too severe in our approach.'' I doubt whether the Government would say that last part. Behind such a statement, the Government would be able to exclude themselves from the criticism that they did not have the guts to include imprisonment in the Bill, when some of the Bill's supporters think it appropriate.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 6:45 pm, 1st February 2001

I will come to the reasons why we took the view that the fine was proportionate and that imprisonment was unnecessary. When the right hon. Gentleman supported—as I assume he did—the Protection of Badgers Act 1992, he would have taken the view that a level 5 fine was appropriate. Also, even though it was a private Member's Bill, the Wild Mammals (Protection) Act 1996 uses a level 5 fine. Therefore, even though the Government have taken the view that a fine rather than imprisonment is proportional, there is some comparability across legislation. Does the right hon. Gentleman accept that that is a reasoned case?

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

We are in difficulty because, as I understand the case against hunting, it does not rely on the issue of cruelty to animals. It relies on a full range of other things. I have listened carefully to the debate on hunting and the issue of cruelty is not what most people cite. They have argued the case from all points of view. Many admitted that the alternative methods might not be any less cruel, but said that the barbaric—that is often the word used—way in which hunting is enjoyed is wrong. It is perfectly possible to disagree with hunting and to want it to be banned, but the Minister cannot put it in the same category as the activity against badgers, which I—and he in spirit—voted to ban.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

It is clear that the difference between the two pieces of legislation mentioned by the Minister and this Bill have been spelled out by my right hon. Friend: the Wild Mammals (Protection) Act 1996 and the Protection of Badgers Act 1992 have ingredients of deliberate infliction of cruelty on a defenceless animal. That is not what we are talking about in the Hunting Bill.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

My hon. and learned Friend reminds me that those who supported those two Bills made a clear distinction between their arguments for banning such activity and hunting. Neither Bill proposed a reference to hunting because their subjects were seen as a wholly different argument and a matter of animal cruelty with which we could deal discretely.That leads me to the second of my three points.

By confusing matters in such a way, the Government are giving out a false signal. They have asked the nation—they have asked Parliament and therefore the nation—to accept one or other of the possibilities. Parliament has decided to accept a total ban, which the Government are presenting to the country as the whole picture. Of course they want to say that, because Parliament has agreed the ban, the country should obey it. It would be wrong, however, for the Government to believe either that the country is as united on the matter as it is on many other Bills, or that people see the subject in the same light as cruelty to animals in general. Therefore, they ought to think seriously about the signals that they send. It is suggested that we accept the ban for all sorts of reasons, only one of which is cruelty—and that is not supported by many people who are opposed to hunting. The Government should be consistent.

The last point that I want to make is that I abhor cruelty to animals and have voted and campaigned against it in many circumstances. I am at the moment very supportive of banning the practice of bears being made to dance, which I find very offensive. I draw a distinction between that clearly unnatural activity and what happens as part of nature. I find it difficult to accept that we should suggest that the deliberate infliction of pain on an animal in artificial circumstances when it is defenceless is the same as something that many of us have supported or done over generations and which is seen by many of us as the best available means of keeping the balance of the population.

The predatory animal, in most cases, kills, but not in order to inflict cruelty. I say in most cases, because man is the one animal capable of doing so, but I think that few people believe that that is what the huntsman is about. I, therefore, hope that the Minister will recognise again that one thing that he could do to help in his campaign to win support for the Bill in the countryside would be if he said, ``Right, I do see that this is not in the same category as these other Bills, so we will have a lower level of maximum fine. I warn people, however, that if that turns out not to have the effect we believe it will have, but to have the effect that other campaigners think that it will have, we will increase the tariff.'' That would not be unreasonable. If he would go that far, we could give way on this amendment and allow him to make the change in some other manner.

Further consideration adjourned.—[Mr. Mike Hall.]

Adjourned accordingly at ten minutes to Seven o'clock till Tuesday 6 February at half-past Ten o'clock.