Schedule 3 - Hunting with dogs: prohibition

Hunting Bill – in a Public Bill Committee at 10:30 am on 6th February 2001.

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Amendment proposed [1 February]: No. 12, in page 20, line 5, to leave out the words `level 5' and insert the words `level 1'.—[Mr. Garnier.]

Question again proposed, That the amendment be made.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

I remind the Committee that with this we are taking 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 Leigh Edward Leigh Conservative, Gainsborough

This important area of the Bill relates to the penalties that will be imposed if someone is found guilty of hunting. We are grateful to the Minister for writing to members of the Committee, saying that some Deadline 2000 proposals do not feature in the Hunting Bill.

The letter, which was sent on 5 February to my hon. and learned Friend the Member for Harborough (Mr. Garnier), the Opposition Front-Bench spokesman, refers to the proposal of Deadline 2000 that someone found guilty of a hunting offence should be liable to imprisonment for a maximum of six months. When the Committee adjourned on Thursday, we were debating penalties in the context of amendments Nos. 12 to 15. The Government's policy differs from that of Deadline 2000. The letter said that the Government believe that a fine is proportionate to the offences in question. We now know the background to this important debate: Deadline 2000 wanted to impose a penalty of imprisonment, but the Government deliberately took the decision that imprisonment should not be part of the Bill and that a fine was proportionate.

There are some interesting points to consider. The Minister has repeatedly claimed that although he accepts that the Bill is his, the essence of it—schedule 3—comes from Deadline 2000. However, he has made a decision on a vital part of the Bill. Of course, he can decide on any matter, so he has decided to impose his point of view. We must press him on why he believes that imprisonment is not an appropriate penalty.

If we are creating a criminal offence, we must have the courage of our convictions. If we believe that someone is acting criminally, surely we must believe in our heart of hearts that he should go to prison. During Home Office questions yesterday, and in the context of a debate about another penalty, I listed a series of serious offences, such as wounding, robbery, murder, assault, drug dealing, grievous bodily harm and actual bodily harm. Society takes the view that people who commit such offences should be put in prison—either as a punishment, because they have done something wrong, as a deterrent, so that they do not do it again, or because they have caused harm to people and need to be kept out of circulation.

Why have not the Government the courage of their convictions? If they believe that hunting should be a criminal offence, why not put people in prison for doing it? Perhaps the Government are being hypocritical. They realise that they simply cannot make imprisonment wash, neither with the rural population nor with the population as a whole. They lack moral courage in the matter.

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

Will my hon. Friend consider the possibility that eventual imprisonment of offenders is indeed what the Government have in mind? Their Machiavellian calculation may be that wealthy people will go abroad to hunt, but relatively poor people will stay here to do so, thus—wrongly, of course—breaking the law. They will then find themselves unable to pay the fines and end up in prison.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

It is indeed true that if one does not pay one's fine, one ends up in prison. I have no doubt that because people feel strongly about the matter, someone will deliberately make himself a martyr by refusing to pay the fine and going to prison. However, that does not let the Government off the hook. All other offences that incur a penalty as high as a level 5 fine offer the alternative of imprisonment. A fine of £5,000 is a serious matter.

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

Two ladies in my constituency regularly go to prison because they refuse to pay fines for their disruptive protests at United States bases. They feel strongly that it is a matter of principle. Does the hon. Gentleman envisage that happening to people with strong views about hunting?

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Yes. People enjoy being martyrs, and I am sure that somebody will deliberately have themselves apprehended, refuse to pay the fine and go to prison in order to draw attention to what they consider to be an attack on their civil liberties. The Government will have to face that problem when it arises.

Do the people who are creating the offence believe that such activity is criminal behaviour, in that it brutalises the person who commits it or harms other people? That is why most criminal offences are created and why we lock up people who wound, rob, burgle or drive dangerously. Is someone who is hunting in the middle of Lincolnshire harming an urban dweller living in Scunthorpe, Doncaster, Brigg, Goole, Lincoln or Grimsby? There have been occasional well publicised stories of unfortunate incidents in which hunters have gone into villages and frightened schoolchildren, but in 99 per cent. of cases hunting does not harm any human being. Nobody else needs to worry about it or be involved in it.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

Does my hon. Friend acknowledge that anti-hunting supporters create far more trouble than anyone else during hunts? They cause terrible damage, terrify foot followers with their appalling behaviour and leave a trail of rubbish and destruction behind them.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

My hon. Friend makes his point.

Could any member of the Committee seriously suggest that this new criminal offence harms other people? It does not. Does it brutalise or harm the person who does it? There is no evidence of that. Are people who go hunting particularly unpleasant people who enjoy inflicting cruelty on animals?

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

I very much agree with my hon. Friend: hunting is a victimless crime, or what Mill would have described as a ``self-regarding act''. However, further to the point made by my hon. Friend the Member for Mid-Sussex (Mr. Soames), having attended a meet of the Bicester hunt last Saturday morning, I can confirm that the behaviour of Mr. Rupert Soames was impeccable.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I am sure that it was.

Even those who want to abolish hunting are not arguing that it harms the wider population. Over the centuries, Parliament in its wisdom—or unwisdom—has made offences of many activities that do not harm people. For instance, until relatively recently—compared with the lifetimes of those in this Room—Parliament took the view that it was an offence to commit a homosexual act, even though such an act harmed nobody. Every member of this Committee will agree that Parliament was right to decide to change that law. We can argue about whether the age of homosexual consent should be 16, 18 or 21, but because homosexual acts harm no one, the law has been changed.

Similarly, the law was changed in respect of attempted suicide—which used also to be a criminal offence—because it harms no one else. Substantial criminal liabilities, fines and so on used also to be attached to the carrying out of abortions. Although abortion is still a subject of great debate, Parliament has moved on. Even those who, like me, strongly oppose abortion realise that it is very difficult to imprison women who want to destroy beings that can have no life outside their bodies.

Given that Parliament has moved on from making criminal offences of activities that do not harm someone else, I am unsure why we are criminalising hunting with dogs. When creating a criminal offence, one must have the moral courage to say that it is not a civil tort that can be remedied by a fine, but an offence that has a serious impact on others. Those who impose the penalty should have the moral courage to impose imprisonment. In that respect, Deadline 2000 is more logical than the Minister.

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

The hon. Gentleman is making an interesting argument, but it can be taken only so far because we are not talking about an activity that involves solely the individuals concerned. The important point is that Parliament has decided that it is wrong to harm not only someone else but something else. I am personally in favour of legalising cannabis, because its use does not affect other people and I see no reason why the Government should tell us what we should stick up our noses or take into our lungs. However, it is another matter when a given activity affects other people or other things, and in this case the activity in question affects mammals.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

That is a fair point. We can take it as read, therefore, that the hon. Gentleman accepts that we are making a criminal offence of the activity not because the human being who carries it out harms other human beings or himself, but because he harms mammals. In other words, this is an animal welfare measure that should, by definition, further the welfare of animals—but no one seriously contends that it will. Hunts kill some 10,000 foxes a year, but about 200,000 a year are killed by all other means. Last week, my hon. Friend the Member for Stratford-on-Avon (Mr. Maples) pointed out that cats kill some 200 million animals of various species each year. Even if there are those who pretend that the Bill is concerned with animal welfare, they surely do not believe that it will give the fox population of this country a longer, happier or better life. The number of foxes and hares killed in hunts is very small compared to the total number killed by other means, so the Bill will not make a serious difference.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire 10:45 am, 6th February 2001

Although I agree with the hon. Gentleman on this issue, I am slightly at variance with his argument. In fact, there are individuals who support the ban in the mistaken belief that it is in the interests of animal welfare. However, he has implied that a ban would most likely not save the life of a single fox. Foxes would probably be killed in more cruel ways, which, on balance, would be more harmful to animal welfare.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

We all respect the point of view held by the hon. Member for West Ham (Mr. Banks). He cannot understand how my hon. Friend the Member for Mid-Sussex (Mr. Soames), whom he describes as a friend, can bring himself to hunt. He thinks that my hon. Friend has been brutalised by a sport that entails inflicting cruelty. At the end of the day, all my hon. Friend is doing when he goes hunting is following an animal—the hound—which is behaving naturally. Animals chase other animals; animals eat other animals; animals die of starvation, old age or are eaten by other animals. I assume that the hon. Member for West Ham is not a softy like the Minister, and that he has the moral courage to want to lock up my hon. Friend and not let him off with a fine.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

May I make it clear to my hon. Friend that I do not want to lock up my hon. Friend the Member for West Ham because of what he may or may not stick up his nose, which is a matter for him. I do not want him to lock me up for what I may or may not do when I go hunting. I go hunting for fun; he sticks—

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

I do not stick anything up my nose.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

I am sorry; I thought that he said that he sticks something up his nose. There were people who used to stick ferrets up their noses, which is a wholly unacceptable pastime. I do not want to lock him up for what he does in his home. I assume that he does not want me to be locked up for participating in a recreation that is entirely legal and has been happening for 5,000 years.

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

The hon. Gentleman is wrong there.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

The hon. Gentleman wants to lock up my hon. Friend, which rural people find extraordinary.

Leaving aside the issue of imprisonment, the compromise that the Government have concocted—a heavy fine but no imprisonment—is illogical, nonsensical and unrelated to previous legislation. It is disproportionate to punishments inflicted for more serious crimes, and out of step with other laws because it does not require proof of cruelty—yet it is still to be a criminal offence.

One million fines were imposed in 1999, of which only 637 were set at level 5. Incidentally, the Government cannot say, ``Level 5 is the maximum, but there may be lesser penalties for hunting.'' One must assume that a fine set to the maximum will, at least on some occasions, be imposed. A threat of conspiracy to murder merited only level 3 fines in 1999, while only two of the six cases of death by dangerous driving were fined at level 5. Two people were fined for gross indecency with children; one of those fines was set at less than £200, the other at less than £1,000. Meanwhile, sex with a girl aged 13 merited a fine of less than £200. How can those offences be compared to hunting, which involves someone on foot or on horseback following another animal that is behaving naturally by hunting? How can it be said that that activity, which I know some people find reprehensible, is on a par with the offences that I have been reading out?

Of course, a level 5 fine could be justified if clear and unnecessary cruelty were involved, as with badger baiting and offences under the Wild Mammals (Protection) Act 1996. That Act allows for a level 5 fine and six months' imprisonment, but the Bill is different because it does not demand proof of unnecessary cruelty and does not allow for imprisonment. The Government have reached what they consider to be a sensible view: offences under the Bill are not on the same level as those under the Act. The Bill has been dressed up as an animal welfare measure that prevents cruelty, but, as I hope I have shown, it is not. If it is not an anti-cruelty measure, it should not exist. If it does not prevent cruelty to animals, it should not become an Act of Parliament.

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

My hon. Friend is helpfully explaining the perversity of the provision. Is he saying that a foot follower could be liable to a fine of up to £5,000? If so, is not that an extraordinary reflection of the Government's legislative and penal policy priorities?

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I do not quite know what my hon. Friend means by a foot follower. During a foxhunt, supporters and members of the hunt may follow on horseback and, as my hon. Friend knows, foot followers, who are often elderly, follow in cars and on foot at the outskirt of the hunt. I may be wrong, but I understand that elderly country people who follow the hunt in their cars, with their picnics, will be liable to a fine of £5,000.

An interesting point has emerged from the Minister's comments. He has said repeatedly, ``Let us be sensible about the Bill. Much of the debate on the Opposition Benches has been ridiculous because the Crown Prosecution Service will never fine someone for walking his dog.'' Presumably, therefore, a gamekeeper will also never be fined. The Minister's argument is that the Opposition are raising more and more pointless arguments because the Bill has been designed to catch large, organised hunts. For the moment and for the purposes of argument, I shall take it at face value that the Minister is telling the truth: that the Crown Prosecution Service will not prosecute anyone who is out walking a dog that chases a rabbit—although I maintain that there will be private prosecutions. If the Minister—as well as Deadline 2000—has done a U-turn and the CPS will not prosecute rabbit hunters, what does he hope to achieve? He is creating a new criminal offence punishable not with imprisonment but with a large fine simply to catch organised hunts. Why has that fine been set at level 5? Presumably someone in Deadline 2000's offices dreamt that up.

Let us say that the purpose of the provision is to deal with the mischief of organised hunts. They will be easy to find; an organised hunt cannot be easily hidden. It is not like a private shoot. A large number of people tramp across the countryside. A hunt will be easy to find and easy to prosecute. If it persists in what the Minister and his supporters describe as antisocial behaviour, fines will continue to be imposed and the hunt will not be sustained.

The sort of people who go hunting are eminently law-abiding, substantial citizens who have to be able to afford their sport--[Laughter.] I do not know why Labour Members are laughing. They believe that hunting is reprehensible, but I am sure that they will agree that people who follow hunts are substantial citizens who spend a lot of money on their sport. That is one reason why they are held in such bad odour and create resentment. If the problem is to deal with the mischief of organised hunts, it would be relatively easy for a court to do so with smaller fines—or is the motivation a hatred of people who ride around on horses, dressed up in what Labour Members consider to be a uniform? The Government have decided that, because the people concerned are well off, a fine of £500 or £1,000 is not sufficient and such people should be hit with a fine of £5,000.

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

The hon. Gentleman should not whip himself into a frenzy. It is easy to let such comments pass because we hope that he will resume his seat soon, but they must be challenged. What he has just said is nonsense. We are not having a go at people because they ride around the countryside on horses and dress themselves up, as he said. They can do that if they go drag hunting; that has nothing to do with the Bill. He must dismiss from his mind the thought that this is a class issue. It is not. He keeps talking about foxhunting, but he could equally apply himself to hare coursing, for which the arguments that he is lathering himself up about do not apply in class terms. He must get away from the idea that this is a class issue; Labour Members do not see it as such.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I accept the hon. Gentleman's point of view, which he clearly believes.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

My hon. Friend the Member for West Ham's description of my hon. Friend lathering himself up when he is making an exceptionally cool and calm speech under the most difficult circumstances is extremely unfair and unkind.

In all humility, I want to clarify one point. My hon. Friend the Member for Gainsborough (Mr. Leigh) is making a little too much of the wealth of those who go hunting. I imagine that some people who go hunting are very well off, but 80 or 90 per cent. of them make considerable personal sacrifices to do so. They are not dressed up in pink coats. They probably have hand-me-down coats, horses, breeches, boots—the lot—[Interruption.] It is a caricature presented by Labour Members, who are making absurd animal noises, to portray hunting as a rich man's sport. It is not. The reason why the countryside march has such astonishing support is because hunting touches the lives of hundreds of thousands of people who are not well off.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Of course I accept that. I do not want to convey such an impression. Certainly on the few times that I have been hunting I have found an extraordinary cross-section of people. It is wrong to typify them as wealthy, and so on.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

They could not afford to pay the fines.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

As my hon. Friend says, they could not afford to pay the fines. I am afraid that there is a slight suspicion in our hearts that if hunts were composed of small groups of farmers on foot in Cumbria, dressed up in old Barbours and doing a bit of pest control, the Bill would never have seen the light of day.

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

My hon. Friend has been characteristically generous—I am always disinclined to be—towards the hon. Member for West Ham, who may be accurate about the present, but is guilty of revisionism as regards the past. Does my hon. Friend recall, for example, that the hon. Member for Norwich, North (Dr. Gibson) made it clear that he found debate on the so-called Foster Bill on 28 November 1997 ``exciting'' because he detected the whiff of class struggle in the air?

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

There is also a suspicion, which we need not go into at any length, that the Bill is a convenient device to placate the parliamentary Labour party's radical tendencies; a harmless measure that will not irritate our vast urban population; a bit of fun that will have a go at people whom the Labour party hates—so what harm will it do? However, I leave that on one side.

Organised hunts, comprising of whatever sort of people, can be dealt with by a civil penalty. I cannot see why a level 5 fine is necessary. Serious offences of burglary of a dwelling, for instance, attract fines up to level 5, although they carry the option of imprisonment as well. Fear of provocation of violence under the Public Order Act 1986 attracts a level 5 fine. It is incumbent on the Minister to tell us why level 5, rather than a civil penalty, has been chosen. Why cannot the Government break up hunts and prevent them from meeting again by imposing civil penalties? The Minister will probably complain that a civil penalty would not do the job, but what about a fine of up to £1,000? People cannot go hunting every Saturday and keep getting penalties of £1,000. Eventually they will be driven out.

A fine of up to £5,000 will infuriate rural people. I very much hope that, especially given that the countryside march is coming up, when up to 500,000 people will be on the streets of London, the Minister will take this opportunity to placate rural people and say that he realises that the issue is difficult, that there are two sides to the argument and that those who go hunting are not committing an offence on a par with theft, burglary or torturing an animal to death.

I cannot bear cruelty to animals. I am a complete wimp when it comes to animals. I can hardly bear to squash a fly. If a bird flies into the house, I want to get it out. If a hare runs out in front of my car when I have the children with me, I do the silly thing and put the brakes on instead of running it over. I am pathetic. Therefore, I agree that those who torture an animal to death—there are those who deliberately do so and take pleasure from it—should attract a level 5 fine.

Just because my hon. Friend the Member for Mid-Sussex wants to conduct an ancient sport full of fine traditions, which does not involve him in any cruelty, why must he face a level 5 fine? He is probably such a slow rider—[Interruption.] He is not present at the moment. Most of the time he is probably way behind the hunt anyway, so he is not in the sport for cruelty. Why must he face a fine that is equivalent to that for burglary, theft or imposing cruelty on animals? It does not wash. I hope that the Minister will give a decent summing up at the end of the debate.

Photo of Mrs Llin Golding Mrs Llin Golding Labour, Newcastle-under-Lyme 11:00 am, 6th February 2001

I want to take the Committee back to the subject of rats. As we are all aware, the Bill contains tight provisions relating to the control of rodents. A street in my constituency has a brook running along the bottom of it that is frequently infested with rats. The rats go into people's gardens. There is land behind the brook that may belong to the council, although there is a great deal of dispute about who is responsible for it. However, people go ratting in the brook, and everybody down the road is pleased that they do so.

The Bill seems to provide that if somebody wants to rat in the brook, everybody in the street must give permission, because it says that rodent control can take place only on land

``(a) which belonged ... to the person doing the hunting, or

(b) which he had been permitted to use for that purpose by someone to whom the land belonged''.

Does that mean that the person must ask at every house in the street if he can do the ratting, in case somebody objects, even though they all want to get rid of the rats? Does it also mean that the dog cannot go in the brook and that the person must have permission from anybody who owns the land behind the field? If he did not ask permission, but carried out the service for those living in the houses, it would surely be ridiculous that he should then face a fine of £5,000.

None of us wants to see rats in our gardens, unless we are a little odd—I accept that some people like rats. Surely getting rid of rats, which carry the most terrible disease, is a service. Why should somebody who does so have to face a fine of £5,000 for missing out a house, or going into a garden or on to a piece of land without permission? A fine of £5,000 is ridiculous for carrying out the service of ratting.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

On the assumption that we are talking about animal welfare—the hon. Member for West Ham reminded us that that is a key driver to this debate—the comments of my friend, the hon. Member for Newcastle-under-Lyme (Mrs. Golding) are absolutely right. The difficulty with a ban is that it is an inflexible tool to achieve the animal welfare objective. I do not want to repeat points, but one realises from them that a ban probably would not deliver even the animal welfare objective that the Bill's supporters want. The level of penalty for breaking the law is out of all proportion to the Bill's intent.

This debate about the extent of penalties should cause us to think twice about what we want to do to people who breach the ban if it becomes law. Most people tend to accept a law once it has been passed and act in good faith, but the provisions will be easy to breach without meaning to do so. Consequently, people could be fined to a serious degree in respect of acts that, although they were not technically beyond the law, were not intended to breach the spirit of a ban on hunting with dogs. Will the Minister provide a perspective on why it is reasonable to impose such heavy penalties on people who do not celebrate the killing of a mammal with dogs, but kill mammals for pest control purposes?

When I think about how packs in Montgomeryshire pursue the activity of killing a fox with dogs, I am reminded that many people do not see the kill or actively participate in the dispatch of the fox, but simply regard hunting as an effective means of controlling the fox population. They therefore find such a serious set of penalties strange.

Photo of Michael Foster Michael Foster Labour, Worcester

Will the hon. Gentleman confirm that the schedule that was drafted for the Middle Way Group contains exactly the same punishment—level 5—as that drafted for Deadline 2000? Is he not appearing to say one thing and do another?

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

I believe that 14 of the 24 paragraphs—about 60 per cent. of the schedule—are included in the Middle Way Group proposals, so Deadline 2000 could get most of what it wants by supporting the Middle Way Group. As the hon. Gentleman said, one of those proposals concerns the system of fines. If Deadline 2000 wants to enhance animal welfare, but not at the cost of creating an unreasonable infringement of civil liberties, it might wish to consider reintroducing, perhaps on Report, the regulatory approach, which achieves a more equitable solution.

To answer the hon. Gentleman's question directly, the Middle Way Group's formulation of the schedule was influenced by our concern about what could reasonably be managed by the courts and what could be seen as just in the eyes of the public. We felt that the more flexible enforcement solution achieved by regulation meant that we could specify a tough upper limit for the sanction on breaching those regulations. The Middle Way Group proposal on regulation is reasonable, enforceable and easy to understand, so people who breached it could expect to be treated severely. The Deadline 2000 proposals are comparatively inflexible, and, with the best will in the world, the foot packs and gun packs in Montgomeryshire would be likely to breach them and, inadvertently, become criminals.

It is a matter of judgment. Some may believe that the Middle Way Group proposal should not have such a severe system of fines, regardless of the flexibility that we built into it. However, we feel that it is balanced and enforceable and that people could expect to be treated harshly if they did not conform to its reasonable system of regulation.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

I am intrigued by the Middle Way Group's view of what constitutes an appropriate penalty. Does it consider appropriate the maximum penalty for killing a bird of prey, which is a level 5 fine of £5,000?

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

As the hon. Member for Worcester (Mr. Foster) rightly pointed out, our proposed penalty structure is exactly the same as that proposed by Deadline 2000. Perhaps the hon. Member for Pendle (Mr. Prentice) has slightly missed the point of my argument.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The right hon. Gentleman is sceptical, so perhaps I should underline the crucial aspect of my point.

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

I am sceptical because the hon. Gentleman was asked a clear question.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

I am concerned that we are beginning to debate matters that are wider than the issue before us.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

I thought that the Committee was discussing level 5 and the setting of appropriate penalties. I intervened on the hon. Gentleman to remind him that although magistrates ordinarily impose a fine of only £1,500 to £2,000, the maximum penalty for killing a bird of prey is level 5—a maximum of £5,000. I was asking the hon. Gentleman whether the Middle Way Group thinks that that is an appropriate penalty for killing a bird of prey.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

I apologise for misunderstanding the hon. Gentleman. The Middle Way Group does not have a formal policy in that regard, but I can give my own point of view. I would speculate that it is probably a hell of a lot easier to enforce that legislation than the provision that we are discussing.

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

Whether deliberately or inadvertently, the hon. Member for Worcester has stirred up a hornet's nest. I am not attracted to the Middle Way Group's proposal, although I respect the integrity and good intentions of those who advocate it. In a nutshell, is the hon. Member for Montgomeryshire (Mr. O£pik) arguing that, under his proposals, the regulatory regime would be so reasonable that transgressing it would be especially unreasonable, thereby warranting the level 5 fine that he envisages?

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

That is exactly what I am saying, and the hon. Gentleman is right to summarise it in that way. I should also reiterate that it is a matter of judgment as to whether the Middle Way Group is right to endorse that level of fine. In our view, if there is to be a regulatory system, there must be tough sanctions to ensure that people do not flaunt it.

In conclusion, given the views of certain members of the Committee, why does the Minister think that this level of sanction is acceptable? It is easy to foresee scenarios in which basically innocent people who are not the target of this Bill will pay hefty fines because of the behaviour of their dogs, or because—quite reasonably—they did not consider every way in which they might fall foul of the ban.

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

The amendments are interesting in the sense that they appear to assume that the penalties imposed are exceptionally onerous for this type of offence, and I am grateful for the opportunity to set the record straight.

The simple fact is that the penalties in the Bill are less severe than those in comparable animal welfare legislation. For example, under the Protection of Badgers Act 1992, the maximum penalty for illegal badger baiting is a level 5 fine and up to six months' imprisonment. Under the Deer Act 1991, there is a maximum penalty of a level 4 fine and up to three months' imprisonment. The maximum penalty under the Wild Mammals (Protection) Act 1996 is a level 5 fine and six months' imprisonment. All three Acts provide the possibility of imprisonment. I remind the Committee of the years in which they were enacted: 1991, 1992 and 1996. I am sure that I need not remind Opposition Members of the political colour of the Government at that time. In this instance, we have taken the view that custodial penalties are not necessary. A fine will be sufficient to deter most illegal hunting and will cause organised hunts to disband.

The hon. Member for Gainsborough, in one of the most interesting contributions on Second Reading, said that most hunts are medium businesses, which was something that I had not fully grasped until he set it out. Therefore, they cannot operate surreptitiously. Most people who hunt tend to be law-abiding; that is certainly true of the people who hunt in my constituency. It is likely that foxhunting will disappear as a result of the Bill, but it is important and right to debate the issue.

Those in the hunting community always assure us that they are law-abiding, and that they will continue to abide by the law. We need to bear that in mind when considering appropriate penalties. It would not be appropriate to have a maximum fine of less than level 5—currently £5,000—not least because we do not want to stray too far from the provisions of other legislation.

Photo of Mrs Llin Golding Mrs Llin Golding Labour, Newcastle-under-Lyme 11:15 am, 6th February 2001

How can my hon. Friend describe ratting as a legalised business? It usually involves a couple of blokes going out with a terrier, hunting rats. That is not a legalised business; it is rodent control.

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

If my hon. Friend will forgive me, I shall deal with one or two other issues before coming to the point that she made.

The first group of amendments dealt with the question of creating criminal offences, or whether there should be a fixed, civil penalty. The hon. and learned Member for Harborough (Mr. Garnier) mentioned the Protection of Animals (Amendment) Act 1954 and the Animals (Cruel Poisons) Act 1962. He suggested that the penalty for poisoning under those Acts was a level 3 fine, while the Bill proposes a level 5 fine for hunting with dogs. He asked why hunting with dogs attracted a much heavier penalty.

One fact that the hon. and learned Gentleman omitted to share was that in both Acts to which he referred, the maximum penalty is a level 3 fine and up to three months' imprisonment. A custodial penalty is always more severe than a financial one. I am sure that his failure to mention that was entirely inadvertent, so I am glad to have the opportunity to set the record straight.

Mr. Bercow rose—

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

I was just coming to the hon. Gentleman.

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

I am grateful; perhaps the Minister and I are developing a symbiotic relationship, whereby I anticipate what he is about to say.

If the Minister is preoccupied with the cause of consistency with other legislation, he should be properly concerned not only with other animal welfare legislation, but with all other legislation that spews forth at a rate of knots from his own Department. Is the Minister aware that the Vehicles (Crime) Bill has just been in Committee, attended to most ably by his hon. Friend the Minister of State, Home Office, the Member for Norwich, South (Mr. Clarke)? That is important legislation, designed to tackle a serious evil, but most of the offences merit only a level 3 fine. Does the Minister not talk to his hon. Friend?

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

I wish that the hon. Gentleman would listen to me. I have already said that the consistency that we wanted to achieve was with other animal legislation on badgers, deer and so on. Our aim was to be consistent, not only with other animal legislation, but with good legislation, some of which was passed by the previous Government. I am sure that the hon. Gentleman would want to endorse the decision of a Government, the colour of which he now supports, that a level 5 fine was appropriate for such offences.

On the issue of why a civil penalty would not be appropriate, Opposition Members—especially the hon. Member for Gainsborough—need to think the matter through a little more. If there were a fixed civil penalty, the court would be prevented from taking into account various mitigating factors, such as whether rats or foxes were being hunted, and then assessing an appropriate fine if a criminal offence had occurred. It would be a matter for the court to decide the level of fine. The maximum is only for the worst types of offences. If there were evidence of deliberate, premeditated and persistent acts of foxhunting, we could get to the higher levels of fine.

If someone had been ratting and had failed to seek permission, the fine might be very small indeed. It would be a criminal conviction, but the fixed-penalty system would prevent recognition of the different level of offence. We believe that it is appropriate to stick with the approach used in other animal welfare legislation that imposes criminal penalties similar to those in the schedule.

Photo of Mrs Llin Golding Mrs Llin Golding Labour, Newcastle-under-Lyme

How can the Minister justify making ratting a criminal offence? He said in Committee last week that he was bothered about including rabbits. Surely, someone who is ratting is doing the community a service.

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

With the greatest respect, I am still dealing with the points made by hon. Member for Gainsborough, whom I hope to convince that the level of fine that we want is appropriate.

Deadline 2000 sought six months' imprisonment as the maximum penalty. We needed to consider what was proportionate and required to achieve our objective, which is to ensure that an act that Parliament has decided to forbid would cease to occur. We felt that such a penalty was proportionate, which would give discretion to the court to deal with the most serious and flagrant examples of breach. As the hon. Member for Buckingham (Mr. Bercow) said, if someone breached an order of the court to pay a penalty, the court would have to impose a term of imprisonment. That would be only for breach of the court order, which is the case across a range of criminal issues that are dealt with by way of fine.

The hon. Member for Gainsborough meandered somewhat; at one point he wittily suggested that we ought to have the courage of our convictions and imprison people. His argument would seem to be that imprisonment is the logical consequence of making hunting a criminal offence. However, there are many criminal offences that do not lead to imprisonment. For example, would he want us to imprison someone for driving through a red light or committing a similar traffic offence? Of course not.

The hon. Gentleman went on to say that hunting would be a criminal offence that hurts no one. My hon. Friend the Member for West Ham replied that the Bill is about protecting animals, which is the objective of the legislation. Indeed, the hon. Member for Gainsborough has previously supported legislation that hurts no one, such as the Protection of Badgers Act 1992, which I suspect, although I have not checked, he will have endorsed as a Member of Parliament.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

On that point, the Minister will remember that the Burns report expressed the view that, under certain circumstances, killing a fox with dogs was not necessarily more cruel than some of the techniques that would still be allowed. The Minister's logic suggests that he is comfortable with criminalising something that the most authoritative report in many years described as no crueller than the practices that he would allow to continue.

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

My objective as a Minister is to ensure a proportionate penalty that is capable of preventing the conduct that Parliament has judged it wishes to prevent. If the hon. Gentleman will forgive me, I shall not discuss the moral merits of particular types of cruelty, because the Government seek to take a neutral position in relation to that issue, although, as members of the Committee will know, each of us has a personal view.

The hon. Member for Buckingham raised an important point concerning foot followers: would they be subject to the legislation and therefore liable to a level 5 penalty? The Bill is not intended to catch spectators, since their presence at a hunt is normally passive. The legislation would catch those who participate in hunting, such as the master of the hunt, the whippers-in, the hunt staff and the mounted followers. However, where some or all of the hunt staff were on foot, the followers would be convicted of an offence because they could be participating and there might be evidence that they intended to do so. That would not be an issue with foxhunting, especially in the case of a mounted hunt, because foot followers are merely passive spectators. However, if people followed the hunt, engaged in the process of hunting and intended to do so, they would place themselves at risk.

Mr. Bercow rose—

Mr. Edward Garnier (Harborough) rose—

Mr. Leigh rose—

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

If Members will bear with me, I shall happily give way later.

There is a requirement that there should be evidence of both actus reus and mens rea; the act and the intention. The offence would cover anyone who participated in a hunt and intended to do so. If there were evidence that they were engaged only in passive spectating, the courts would have to take that in account. If someone was merely a follower, and they were able to demonstrate that, they would not be guilty. However, when we pass criminal legislation we always expect people to exercise a degree of caution to ensure that they do not transgress the law. That is right and proper, and I do not think that anyone should object. Anyone seeking to foot-follow a hunt carried out on foot would be wise to ensure that it was clear that that was their objective.

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

The fog is descending ever more heavily as the hon. Gentleman develops his argument in the characteristically lawyerly fashion with which we have become increasingly familiar. Can he clarify his remarks of a moment ago, which I found peculiarly alarming? He referred to someone who was foot following and could demonstrate that that was all that he or she was doing. With the greatest respect, I put it to the Minister, who is a distinguished lawyer, that it is not the responsibility of such a person to demonstrate his innocence; it is the responsibility of the prosecuting authorities to demonstrate his or her guilt.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 11:30 am, 6th February 2001

It must always be the responsibility of the prosecuting authority to demonstrate both the act and the intention to carry out that act. However, I was referring to the context in which someone might want to exercise a degree of caution in ensuring that everyone was aware that he had no intention of breaching criminal law. It would be wise for anyone who puts himself in a position in which someone might misinterpret his intention by reason of what he is doing to tell someone--for example, the police-- that he has no intention of breaking the criminal law. He may want to exercise that element of caution, but the hon. Gentleman is correct in that it must always be the responsibility of the prosecuting authorities to prove beyond reasonable doubt both the intention and the act.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

That is an interesting point and we need some expertise from Committee members such as my hon. Friend the Member for Mid-Sussex. During a foxhunt, only the huntsmen and possibly other hunt officers, such as the whippers-in, actually hunt. The mounted followers do not hunt; they follow the hunt, but do not take any part in directing the hunt. The field master keeps them back. The Minister made a distinction between those who follow the hunt on foot or in cars and those who follow on horses. Those who follow on foot or in cars are not hunting a fox, nor are the people on horses. That is an interesting legal argument and should be clarified before we continue.

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

The hon. Gentleman makes an interesting technical and legal point, but at the end of the process, a court of law with a jury or a magistrates court would have to make a decision on whether the material facts of the case showed that an offence had been committed. It is as simple as that. Lawyers may, as we have seen, put forward spurious, frivolous and merely good technical legal arguments. That can be done with any law, but does not mean that we should not pass laws. We pass laws because we take a view that it is necessary. Parliament has taken the view that the Bill is necessary to stop a particular mischief. It is right to accept that issues may arise later and that we should test those issues in Committee. That is entirely proper, but it does not mean that the Bill should not be enacted.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Would the Minister say that a ``passive spectator'' of an illegal hunt was guilty of connivance?

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

That would depend on the circumstances. If someone has no intention of hunting and is not actively participating in, conniving with, facilitating or encouraging it, he would have to show the court that he was not committing an offence if a charge were brought. I return to the point made by the hon. Member for Buckingham that it is always the responsibility of the prosecution, as the hon. and learned Member for Harborough knows, to show both the act and the intention. If that cannot be shown, no offence has been committed.

Mr. Bercow rose—

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

I am desperate to move on to ratting. My hon. Friend the Member for Newcastle-under-Lyme is waiting for me to talk about rats.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The followers of foot packs in Montgomeryshire, for example, may be half a mile or a mile behind the huntsmen and the dogs when the fox has been caught. It would be reasonable for them to have some indication from the Minister on whether they would be liable to criminal prosecution if they were a mile away as social spectators. It is not fair to require them to wait for the first test case in court. We are trying to make the legislation work.

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

Someone who is part of a group of people that is setting dogs on mammals within the terms of the Bill, doing so intentionally and participating in that act will be in danger of prosecution for the offence. If someone is merely spectating, not participating in the act, not facilitating dogs or other people to hunt and taking no part, it is difficult to see how he could be prosecuted. The hon. Gentleman suggested that the animal could be killed out of sight of those who are following. If they have set a dog on the mammal, it matters not whether they can see the dog kill it because the intention to hunt would be clear and the act would have been committed by setting the dog on the mammal. It is not the eventual outcome that is the offence, but the process that is undertaken.

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

I am becoming ever more worried about the Minister as the argument progresses. Will he help us by finally and precisely distinguishing between spectating and participating, because it is a grey area? Does he accept by analogy that someone at a football stadium who expresses support, makes observations and queries the judgment of linesmen—perhaps volubly—is, nevertheless, only spectating and not participating in the sport? Does he also accept that someone standing, walking, observing and perhaps expressing enthusiasm for a hunt, is only spectating, not participating, and, therefore, is not required to prove anything?

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

It will be for a court to determine on the facts whether a particular person in particular circumstances has committed the offence. That is always so under any law. The hon. Gentleman's example is bad for his case. A spectator at a football match is only a spectator. There is a barrier in front of him and a clear distinction between those who are participating in the game and the spectators. I am sure that he can think of a better example.

There is an issue concerning those who are merely foot followers and not participating in a hunt. I have made it clear that, in my view, those who are passive, take no active part in the hunt and do not intend to hunt or to facilitate hunting are not committing an offence. However, those who participate may put themselves at risk of prosecution.

Photo of Alan Simpson Alan Simpson Labour, Nottingham South

Will my hon. Friend confirm that some explanation will be required of why someone is following an event that is illegal and, therefore, should not be taking place? The football analogy is spurious; it would be necessary to question the conduct of spectators of a game that was not taking place, in which case those spectators should perhaps be referred under mental health legislation. Should we not be saying that an observer of an unlawful act might be asked to explain why he is observing an unlawful act?

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

My hon. Friend is right in saying that someone may have to give an explanation, but that would not necessarily mean that he had committed a criminal offence and particularly not under the schedule. The purpose of the schedule is clear: to catch those who would commit an offence if they hunted a wild mammal with a dog. If they are not hunting a wild mammal with a dog or facilitating that, they will not be caught by the schedule unless it otherwise prescribes. That is the position set out in the schedule and that is what Parliament has endorsed.

My hon. Friend the Member for Newcastle-under-Lyme asked about the specific example in her constituency when someone takes their dog to catch rats in a ditch at the end of a road.

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

A brook; she asks whether there is a requirement to seek permission. Let me set out how I read the schedule. Paragraph 8(3)(b) says:

``which he had been permitted to use for that purpose by someone to whom the land belonged''.

``Permitted'' does not require permission. Permission is when I say to my hon. Friend, ``Yes, you can go and rat with your dog on my land''. However, if she has not spoken to me—she does not have permission—but thinks that I would be likely and happy to give her permission, I have no objection to that. I have not given her permission, but I have accepted that ratting is a good thing for her to do. Has my hon. Friend committed an offence? In my view, no offence is committed where I am permitting my hon. Friend to undertake such activity. However, if she were to go ratting with her dog on my land and I objected to it, she would be committing a criminal offence.

My hon. Friend asked whether I would expect anyone convicted of ratting with a dog to be fined £5,000. I should be greatly surprised if they were. However, that is the maximum penalty. Let me posit the sort of circumstance involving ratting in which a person might be fined the maximum.

Suppose somebody goes ratting on my land; I am sure that it would not be my hon. Friend on this occasion. I do not give permission, but they still do it. They do it again; they are convicted. They do it again; they are convicted. They do it again; they are convicted. That shows a persistency and contempt for the law that could well merit the maximum fine. However, if someone were merely ratting in the circumstances that my hon. Friend described, I should be very surprised if they were fined at the severe level prescribed in the Bill, especially if it were a first offence.

Photo of Mrs Llin Golding Mrs Llin Golding Labour, Newcastle-under-Lyme

What the Minister says is clear, but the brook runs behind 150 houses. It would not be a case of one person or a couple of people objecting. Does he seriously think that if a Bill were put before the House dealing simply with rodent control—preventing people ratting—people would turn up in droves to support it? That would be unbelievable.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 11:45 am, 6th February 2001

I am sure that people would not turn up in droves to prevent people ratting. That is not the objective. The Bill specifically gives permission for ratting in certain circumstances. Paragraph 8 says that a person may carry out rodent control, or ratting, where there is consent for that to be done on other people's land or where the person is doing it on their land, which is entirely right. However, Deadline 2000, whose policy the House endorsed, believes that the Bill should contain a provision to restrict people from going on to other people's land without their permission to hunt with dogs.

Photo of Mrs Llin Golding Mrs Llin Golding Labour, Newcastle-under-Lyme

A criminal conviction for removing rats from a brook behind people's houses because one or two people object is nonsensical. When I discussed that proposal with colleagues, several said that of course it would be thrown out in Committee, because we do not want to fine people for ratting.

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

If the Bill's objective were merely to do that, it is indeed unlikely that the House would pass it. The Bill contains a whole series of safeguards to prevent the frivolous or unacceptable prosecutions that my hon. Friend fears from becoming a reality. In every such case, before a prosecution can be mounted, there must be evidence that the act has been committed, that there was an intention to break the law and that no permission was granted. Moreover, there must be a public interest in carrying out the prosecution and there must be no defence.

I understand my hon. Friend's worries. However, Parliament has decided that a person should not be obliged—as she would apparently permit—to have someone else hunting with a dog on their land, even if they are hunting only a rat. I accept that there is already the law of trespass. However, given the appropriate level of penalties—I have explained that, and how a court might interpret it—it should be possible for the criminal law to prevent someone from repeatedly going on to my land to hunt rats when I have not given permission for that to occur.

If my hon. Friend accepted that point of view, it would become difficult for her to argue that the provision was unacceptable. I would have strong objections if someone turned up with a dog in my garden—small as it is—to go ratting, and the law should not permit that to happen.

Photo of Mrs Llin Golding Mrs Llin Golding Labour, Newcastle-under-Lyme

That is not the point that I was making. A stream at the bottom of a garden has two banks. If someone is in the stream ratting, they are not bound to climb into a garden and walk around. Indeed, I have never known anyone who goes ratting to go tramping around people's gardens looking for rats; there are enough rats around already without having to do that.

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

I am pleased to hear it. On that basis, no one will need to bring the kind of prosecution that my hon. Friend is talking about. I am grateful to her for making my case for me.

The hon. Member for Montgomeryshire made a similar point about people being prosecuted in relation to rats. I merely repeat that the Bill contains safeguards in terms of its requirements to prove the act beyond reasonable doubt and the intention to breach the law, that there is no defence and that there is public interest in carrying out the prosecution. The concerns that the hon. Gentleman expressed went too far.

I cannot advise the Committee to accept the amendment, and I hope that the hon. and learned member for Harborough will see fit to withdraw it.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I am most grateful to the Minister for his concluding remarks, which we shall consider in a moment. I am also grateful for his letter of 5 February—copies of which have been sent to the two Chairmen and, perhaps, to other members of the Committee—dealing with my inquiries in the previous sitting about the background to the Bill's drafting. My hon. Friend the Member for Gainsborough referred to at least one passage from it, and I want to thank the Minister for some other comments. He said:

``A number of proposals contained in the Deadline 2000 Bill do not feature in the Hunting Bill as introduced. They are as follows:

Two offences, of owning or possessing a dog intending it to be used to hunt a wild mammal, and possessing an instrument designed or adapted for use in connection with the hunting of wild mammal. We''— that is, the Government or the Home Office

``took the view that it would be inappropriate and unnecessary to cast the net so widely.''

I agree. According to the Minister, the second proposal was:

``Provision for a magistrate to have the power to grant a warrant to a constable to enter and search any premises, including a dwelling house, for the purpose of obtaining evidence of a hunting offence where the court is satisfied from information given on oath that there are reasonable grounds for suspecting that such an offence has been committed and that evidence of the offence may be found on the premises.''

Although Deadline 2000 wanted the Bill to deal with that matter, the Minister stated:

``We did not consider the offences sufficiently serious to justify enabling the police to gain entry to domestic premises without the consent of the owner. No such power exists in relation to related animal welfare legislation.''

Deadline 2000 also proposed the following:

``A person found guilty of a hunting offence should be liable to imprisonment (for a maximum term of six months). As you''— in other words, me—

``know, when the Committee was suspended on Thursday we were debating penalties in the context of amendments 12 to 15. I''— that is, the Minister—

``indicated to the Committee that the policy of the Government differed from Deadline 2000 in that we believe a fine is proportionate to the offences in question.''

It was useful for the Minister to spell out those points in his letter, and I hope that it has been useful to spell them out again.

Unfortunately, I am not sure that the Minister has satisfied the Committee in respect of the arguments advanced in this morning's useful debate. Interesting forays have been made down highways and byways that, although they do not strictly relate to levels 1 to 5, have enabled the Committee and the public as a whole better to understand how the Bill came to be constructed.

The Minister's response to an intervention by my hon. Friend the Member for Buckingham on foot followers and followers in general has perhaps led to more questions than answers, but I am nevertheless glad that his pronouncements on the subject have been put on the record. In response to a question from the hon. Member for Newcastle-under-Lyme, he interpreted paragraph 8(3)(b), and I listened with care to his definition of the word ``permitted'' and the concept of permission. Perhaps I misunderstood, but I am not sure that that definition sits comfortably with the paragraph, and on more mature reflection the Minister might agree that he should reconsider it. Perhaps he will return to that point, but in any event—and notwithstanding his own opinion—a court is perfectly entitled to reach its own conclusion about the meaning of the word ``permitted'' under that paragraph.

The hon. Member for Newcastle-under-Lyme took us on an expedition down the brook in her constituency, and told us of the activities of those who go ratting. The Minister correctly pointed out that the law of trespass already exists to prevent entry on to other people's land without permission. Indeed, organised hunts today do not enter other people's land without the owner's permission. That is the whole point about hunting; it is done with the consent of the farmer, owner or occupier of the land in question.

It would be silly not to accept that, from time to time, a pack of hounds or a hound will trespass, in so far as animals are capable of trespass. They unfortunately get on to railway lines or the highway, or they overshoot and get on to land belonging to someone who does not want the hunt on his land. I am aware that that happens. It is regrettable, but it is something for which the master should immediately apologise and, if any damage has been done to the land, he should ensure that it is repaired and that, if necessary, compensation is offered.

The civil law of trespass already seems to cover the matter. I am sorry that the Government are taking a Bill through the House that turns what can be dealt with now under civil law into a criminal law matter. The hon. Member for Newcastle-under-Lyme cogently expressed her concerns and those of her constituents about that.

There have been extremely helpful contributions to the debate from the hon. Member for Montgomeryshire, my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) and my hon. Friends the Members for Mid-Sussex, for Buckingham and for Gainsborough. There have also been some useful interventions from the hon. Members for West Ham and for Pendle (Mr. Prentice), thus demonstrating that they are interested in the issues and in engaging in the debate. I am grateful to them for doing so.

Despite the Minister's best endeavours, I have yet to be convinced that the arguments put by those on this side of the argument have been adequately dealt with. In tabling this group of amendments, my hon. Friend the Member for Aylesbury has done us a signal service, but I regret that the Committee has not yet had a chance to give a verdict on them. I invite it to do precisely that.

Question put, That the amendment be made:—

The Committee divided: Ayes 9, Noes 17.

Division number 6 Adults Abused in Childhood — Schedule 3 - Hunting with dogs: prohibition

Aye: 9 MPs

No: 17 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. 45, in page 20, line 9, after second `the', insert `express'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this we may take amendment No. 46, in page 20, line 9, leave out `or connivance'.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The two amendments relate to paragraph 6 of the schedule, headed ``Bodies corporate''. It may be useful to read the sub-paragraph to get the context of the amendments. Sub-paragraph (1) says:

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

Sub-paragraph (2) says:

``If the offence is proved to have been committed with the consent or connivance of an officer of the body corporate he shall be guilty of the offence (as well as the body corporate).

Then sub-paragraph (3) says:

``In sub-paragraph (2) `officer' includes—

(a) a director, manager or secretary,

(b) a person purporting to act as a director, manager or secretary, and

(c) a member of a body corporate the affairs of which are managed by its members.''

Page 7 of the Burns report, which is headed ``Summary and Conclusions'', gives an explanation of the way in which hunts organise themselves. Paragraph 5, which relates to chapter 2 of the report, says:

``There are about 200 registered packs of hounds (mainly foxhounds but also some harriers) in England and Wales which hunt foxes, plus a number of unregistered packs in Wales. Most packs have mounted followers but a number, including the Fell packs in Cumbria and the footpacks in Wales, are followed on foot only. The Welsh gunpacks use dogs to flush foxes to waiting guns.''

The report goes on to say in paragraph 6:

``The registered packs are estimated to kill some 21,000-25,000 foxes a year.''

Paragraph 7 says:

``There are three registered staghound packs in the Devon and Somerset area.''

Paragraph 8 says:

``There are about a hundred registered packs of hounds (beagles, bassets and harriers) which hunt hares.''

Over the page, paragraph 9 says:

``There are some 24 registered hare coursing clubs, which kill about 250 hares a year in total and a small number of other unregistered clubs. But there is a good deal of illegal hunting/coursing in some areas.''

Paragraph 10 says:

``The 20 minkhound packs kill somewhere between 400-1,400 mink a season. The number is thought to be considerably smaller than that killed by trapping and shooting.''

We can see from the beginning of the Burns report that there are a number of organised and registered packs. They may or may not be organised into corporate entities, but they are certainly organised. In later chapters of the report there are references to what goes on in the United States, Canada, Australia and some of the countries of mainland Europe, where there are also organised or registered packs, mounted or on foot—but mostly mounted—which are engaged in hunting wild mammals with dogs, to use the expression used by the Bill. The bodies corporate to which paragraph 6 of the schedule refer are not wholly unknown in the activities of hunting.

I am not an expert on the management of hunts, but, as I understand it, some hunts are literally corporate bodies; they are limited companies. Some, on the other hand will be under private ownership and owned by an individual who, for a fee or a subscription, allows others to follow his or her hounds.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex 12:00 pm, 6th February 2001

I think that I am right in saying that the pack that operates in the constituency of my hon. Friend the Member for Gainsborough—the Brocklesby hounds—is owned entirely by Lord Yarborough. He owns the hounds and a committee organises the hunting. The same is true of the Belvoir hunt, where the hounds are owned not by the hunt, but by the Duke of Rutland. They are called the Duke of Rutland's hounds. It is a complex matter, which is not easily dealt with under the schedule.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

My hon. Friend makes a good point. I am aware of the Brocklesby hunt, and I live next door to the Belvoir country. Not only are the Belvoir hounds called the Duke of Rutland's hounds, but they belong to him. The same may be true of the Beaufort, in that the hounds and the land on which their kennels are located belong to the Duke of Beaufort.

There are several ways of organising and managing registered hunts. We have mentioned three that we believe to be in private ownership. Other Leicestershire hunts such as the Cottesmore and the Fernie are owned not by an individual, but by an unincorporated association in the form of a board of trustees or a committee, which manages the hunt's affairs on behalf of its members. It employs the hunt staff and owns the hounds and horses that are used by the hunt staff. That kind of legal organisation is clearly distinct from a corporate body such as a limited company or a hunt that is in private ownership.

I assume that paragraph 6 is designed to prevent individuals from carrying out their hunting activities through the guise of a corporate entity. Although it is possible to prosecute and fine an individual for hunting contrary to paragraph 1, if that individual has no money and cannot afford the £5,000 fine, the prosecutor can none the less—at the same time or as an alternative—prosecute a corporate entity and ensure that the fine is levied upon it.

I do not need to rehearse my concern about policy of the Bill and its genesis; we have all made our positions clear on that. However, I should like to test whether the construction of paragraph 6 is clear, fair and just. The amendments would improve the clarity of sub-paragraph (2) by tightening up the commission of offences by bodies corporate, so that an officer of a body corporate would be guilty of an offence only if he had given express consent to that offence.

The amendments would ensure that the law was just and enforceable. At the moment, the Bill is unclear in terms of definition. It is not acceptable under English law to have poorly defined offences; they must be clearly defined and a person must be capable of knowing if he is committing an offence. The terminology in paragraph 6 is wholly inadequate to satisfy the requirements of the law and of natural justice, because it is not clear what constitutes consent. Would implied consent be sufficient, or would consent be assumed from silence? Thomas More was convicted in the Great Hall of this building on the basis that his silence implied acceptance of the charge, but he did not think that he was guilty of anything. I look to my hon. Friend the Member for Aylesbury, who is a noted Tudor historian, for further elucidation of that point.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Strictly speaking, my hon. and learned Friend is wrong. Thomas More was not convicted on the ground of silence; he was arraigned on five offences and got off on four thanks to his skilled defence. He was found guilty of the fifth on the basis of a conversation in the Tower with Richard Rich. I look to my hon. Friend the Member for Aylesbury—who, as has been pointed out, is a noted Tudor historian—for confirmation, but I believe that my hon. and learned Friend's claim is incorrect.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I am grateful to my hon. Friend for two reasons; for correcting me and for stopping me in mid-flow. Once I get started on the subject of dodgy Lord Chancellors, I find it difficult to stop, so I shall keep Sir Thomas out of our discussions. The Parliamentary Secretary doubtless has the history of all Lord Chancellors at her pretty little fingertips—[Interruption.] I apologise for becoming over-enthusiastic and I withdraw that sexist remark. I hope that the Parliamentary Secretary, who would doubtless love me to return to the subject of paragraph 6(2), will accept the sincerity of my apology.

We are suggesting that there should be a requirement for express consent. When we discussed the previous group of amendments, I tested the Minister on the question of connivance. In asking whether a passive spectator of a hunt would be guilty of conniving, I was anticipating discussions in relation to amendment No. 46. What does connivance mean in this context? I accept that it is a perfectly ordinary, English dictionary word, but all manner of such words make their way into legislation and form the basis of arguments that take cases from the High Court through the Court of Appeal to the House of Lords. To avoid such cases, the word would need to be defined adequately in legislation. Sadly, we would otherwise have to establish in a given case whether it had been translated into an offence.

Connivance could mean winking at the act or turning a blind eye. It could also be interpreted as meaning an act of omission. Could one be construed as conniving simply by failing to check, or by failing to put in place safeguards to monitor, activities on land in corporate ownership?

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

My hon. and learned Friend is raising the worrying prospect of what might be called inadvertent connivance. Is there such a thing?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

The short answer is that I do not know. The Bill does not help me to find the answer.

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

The Bill does in fact provide some help in that regard. Paragraph 6(1) states:

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

On looking at those paragraphs, the hon. and learned Gentleman will see that, for an offence to be committed, the person in question must do so ``knowingly''. The word ``knowingly'' therefore also applies to offences committed under paragraph 6.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

It might be easier if the Bill were consistent in its language throughout. If paragraphs 1 to 4 apply to offences committed by a body corporate or a relevant officer of such a body, why not use the language of those paragraphs in paragraph 6(2) to get the point across? ``Connivance'' is a word that brings with it confusion.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle 12:15 pm, 6th February 2001

The Committee will know that I am not a lawyer, but I take ``connivance'' to mean tacit permission. A few days ago, we had a long discussion on the legal meaning of ``knowingly''. The hon. Member for Gainsborough referred us to ``Archbold'', so perhaps the hon. and learned Member for Harborough could refer us to its definition of ``connivance'' to help non-lawyers such as myself.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I shall not do that because I do not happen to have ``Archbold'' with me. The hon. Gentleman is a perceptive Member, and I dare say that he has photocopies of the relevant sections, which he should examine under ``c'' for ``connivance''. My hunch is that there may not be an entry under ``c'' for ``connivance'' in the index of ``Archbold''. Perhaps during the short adjournment we shall be able to investigate that point; indeed, he has prompted me to do so.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

I would be grateful if my hon. Friend consulted ``Archbold''. I wonder whether it contains a reference to the famous case in 1957 when Sir Thomas Meyrick, who was master of hounds, and all 70 members of the Pembrokeshire hunt, which was a body corporate, were summonsed to appear before Welsh magistrates in Eglwyswrw. Unfortunately, Sir Thomas Meyrick was unable to attend on that day because he was at a hunter show in Shrewsbury. Of course, the case was thrown out and damages were awarded against the police. Would my hon. and learned Friend consult ``Archbold'' during his lunch hour, rather than going to Granita in Islington, to see whether it has caught up with the 1957 case of Sir Thomas Meyrick?

Photo of Edward Garnier Edward Garnier Shadow Attorney General

It seems that my hon. Friend will once again be eating alone at Granita. Sir Thomas Meyrick and his case clearly deserve further consideration, so perhaps he can do a little private study as he lunches alone. For the moment, I shall not travel further across Offa's dyke to consider that case, which is no doubt of interest to students of law, but not, I suspect, to the hon. Member for Pendle. Nevertheless, I shall examine ``Archbold'' over lunch to attempt to find some information about ``connivance''.

As drafted, paragraph 6(2) imposes an obligation, under threat of criminal liability, on every officer of a company who suspects that an offence may be committed to prevent that offence. That is an inappropriate responsibility to place on members of the public who may well be innocent of any criminal act. The amendments tabled by my hon. Friend the Member for Aylesbury are clear, sensible and do not undermine the thrust of the Bill. Deadline 2000, which seems to be the policymaker behind the schedule, cannot complain if the expression ``express consent'' is imported into the schedule and the word ``connivance'' is removed from it.

The Minister has pointed out that we are considering offences under paragraphs 1 to 4 that could be committed by a body corporate or an officer. At this point, I should not want to lead myself into error because his knowledge of criminal law is probably better than mine. I think that I am right in saying that one cannot be vicariously responsible for the criminal acts of one's employees. It may be that he can remind me, given his experience lecturing law, whether that is true.

Presumably—I may need to be corrected—we are attempting to get at the directing mind of the body corporate. A body corporate is not capable of existing or acting other than through human thought. If those human beings are to be caught through paragraph 6 under the offences in paragraphs 1 to 4, the least we can do for them is to make how they can avoid criminality abundantly clear. I trust that the Minister's inquiries will assist the Committee and that my initial comments will have caused the Committee to think again about the way in which the Bill is drafted.

Finally, I repeat my apologies to the Parliamentary Secretary.

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

I am grateful to the hon. Member for Aylesbury for tabling the amendments, which provide the opportunity to consider paragraph 6 of the schedule. As well as on the principle of hunting with dogs, the schedule provides further offences covering the case of a person who knowingly allows dogs or land which he owns to be used for illegal hunting. However, it is possible for land and dogs to be owned by corporate bodies and it would be wrong if that facility were used to get around the provision. Accordingly, paragraph 6 provides that the offences can be committed by a body corporate. In such cases, the officer of the body corporate who gave permission for the offence to be committed, as well as the body corporate itself, which may have considerable resources, could be found guilty of an offence.

Amendments No. 45 and 46 attempt to alter the description of the actions required by an officer of a body corporate to prove that an offence had been committed. Amendment No. 45 would qualify the action of consent by providing that consent must be expressly given, but consent can be given in various ways. It can be given expressly or with a nod and a wink. Someone may allow another person to do something on his land and even indicate that consent, although not expressly given, has been implicitly given. An officer of a body corporate may be aware that land owned by the company is regularly used for illegal hunting. If he takes no action to prevent the hunting--for example, by alerting the police--he is, effectively, giving implied consent to it. There is no reason why such a person should be protected from the possibility of prosecution, which would be the effect of the amendment.

Amendment No. 46 would remove from the offence those officers of a body corporate who had connived in allowing their land or dogs to be used for illegal hunting. Again, I must ask why such people should not face the possibility of prosecution when, effectively, they conspired to commit a criminal offence. One representative of a body corporate could give consent for illegal hunting and another person in the company might facilitate that by leaving a gate unlocked or allowing something to happen that otherwise would not happen. Under amendment No. 46, the second person would be in the clear. I do not see why someone who had connived—although he may not have given express consent—should be in the clear. Both would have taken similar action to facilitate the breaking of the criminal law.

Some Committee members are concerned that representatives of a body corporate may find themselves inadvertently committing offences, but the offence in paragraph 6 refers to paragraphs 2, 3 and 4 and hon. Members will see that all the relevant parts of those offences can only be committed knowingly. Unless the officer of the body corporate knowingly allows dogs or land to be used for illegal hunting or connives in such activities, neither he nor the body corporate can be guilty of an offence.

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

There has been much press coverage of the fact that the Northumberland wildlife trust is appointing a warden to look after the wild goats that roam the Cheviots. The trust has made it known in several press articles that the warden will be expected to have his own dog. If the warden used the dog to seek out an injured goat, perhaps with the intention of killing the goat because it was seriously injured, would the trust's officers then be liable, because they made it known that the warden was expected to keep a dog for his work? Would they be responsible and have criminal liability?

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

I am not sure whether the right hon. Gentleman is suggesting that hunting is taking place because, presumably, there is no proposal that the dog should be used to kill the goat. Perhaps he will elucidate the point.

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

If the warden takes the dog with him to seek an isolated goat that has been injured with the intention of dispatching the goat because it is in pain, that would presumably be defined as a form of hunting under the Bill.

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

No, it would be a form of tracking, which is permissible. If the objective is not that the dog should kill the animal that it finds, there should be no problem. I do not understand how the schedule would prevent the sort of activity to which the right hon. Gentleman refers. He may know something that I do not, but I do not believe that there would be a problem with the schedule.

Paragraph 6 is correctly drafted. It will give proper effect to the policy of Deadline 2000 and that endorsed by the House. The changes suggested in the amendment would create unnecessary loopholes in the way in which the Bill was designed to operate. I ask the hon. and learned Member for Harborough to withdraw the amendment, and perhaps the hon. Member for Gainsborough will tell the Committee whether the unnecessary loopholes that I described should be in the Bill.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

I want to ask about the conniving point. Does the Minister believe that not checking or monitoring an activity, or failing to implement safeguards to stop an illegal activity, could be construed as conniving?

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

A person must know that an activity is taking place, so he must be aware of it. That does not oblige the owner of land to keep people patrolling his boundaries to ensure that such an activity does not take place. However, he probably needs to act in a way in which an ordinary, prudent landlord would act. If he deliberately did not check his land and was aware that someone was going to hunt on it, the issue would be whether the prosecution could prove that the act of omission was knowingly committed in the knowledge that a hunt was likely to take place. There is a requirement on the prosecution to prove all the elements of the offence.

Permission can be expressed or implied. The issue is whether implicit consent has been given and whether someone was conniving or acting in a way that the court construes as sufficient to show that an act was carried out and an intention existed to connive expressly or implicitly to give consent to the act. The Bill includes safeguards for a landlord who operates normally, and if, unknown to him, a hunt crosses his land, he should have no problem and should not be subject to prosecution or to being brought before a court. Only a landlord who knows that a hunt is likely and takes no action to show that he dissents from it could put himself in a position in which he implicitly gave consent to it. The hon. Member for Gainsborough knows that evidence is required and that, with that evidence, the prosecution must always prove its case beyond reasonable doubt.

The amendments are unnecessary and would add little to the Bill. Indeed, all they would add is confusion.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Before we finish, I want to take up a point that was raised by my hon. Friend the Member for Mid-Sussex and to illustrate it with reference to the two hunts that operate in my constituency--the Brocklesby and the Burton hunts--which are organised differently.

The Brocklesby is one of the last remaining packs of pure-bred foxhounds in the country—if not the only one—going back to the 18th century. It would be a tragedy if those hounds had to be put down, but that is not what we are talking about. It is true that the Brocklesby is entirely owned by the Earl of Yarborough. He is a master of the hunt, but there are others. The Burton hunt is differently run. Again, it has masters, but, as I understand it, it is a body corporate—owned, or at least directed, by the officers. I suppose that the argument in the case of the Burton is clearer, but I do not know what would happen in the case of the Brocklesby.

Just for the sake of argument, who would be responsible if an offence were alleged to have been committed? Would it be the huntsman, who is hunting the hounds at the time when the offence is committed? Would it be the masters who form the committee? Would it be the owner? Those are interesting questions and we need to be sure about the answers.

I am grateful for the Minister's reply to my question whether one could be construed as conniving if one did not check and monitor activity. He said that it was an important question, and seemed to give a fair answer by saying that one must have knowledge: the court must prove that the person knew what was going on and, although he did not expressly give consent, because he knew there was implied consent.

I should have asked the Minister a different question, and I should be grateful if he tried to clear up the matter, if he has a moment. What happens if the person did not know but suspected? I am worried that the paragraph imposes an obligation. Under threat of criminal liability, the Bill puts an obligation on every officer of this body corporate—the owner, the master or the huntsman—who suspects that an offence may be committed to prevent it. It is an inappropriate obligation to place on people who merely suspect that something may be going on.

Photo of Mike O'Brien Mike O'Brien Parliamentary Under-Secretary, Home Office 12:30 pm, 6th February 2001

I am not sure that the hon. Gentleman wants to take this line. Is he is saying that, if I suspect that a criminal offence is being committed, I should not be under any obligation, moral or otherwise, to report it to the police?

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

That is a slightly different point, but my hon. and learned Friend the Member for Harborough, who will wind up the debate for the Opposition, may be able to deal with it. In a way, we are going back to the interesting points made last week by my right hon. Friend the Member for Suffolk, Coastal. If one suspects a burglary is taking place, is one under an obligation to report it to the police? Does one commit a criminal activity if one does not report it? Of course not. If one suspects that hunting is taking place, is one under an obligation to report it to the police? If one does not report it, is one therefore liable to criminal liability? I do not know the answer to that. I am not sufficiently skilled in this area of law to know the answer; we need clear guidance from Ministers.

I know what the Minister is trying to achieve. He is trying to stop people who want to avoid the responsibilities laid down in earlier paragraphs and to shelter behind a body corporate. That is fair enough; it is his job to make the Bill watertight. However, he does not want to put too onerous a burden on those who are not conniving and do not have knowledge, but may suspect what is going on.

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

I hear what the hon. Gentleman says. That is a reasonable point. He is asking whether a person who has a mild suspicion is at any risk of criminal prosecution. The offence and the notion of conniving require knowledge, not mere suspicion. Therefore, I do not think that the point that he has identified puts anyone at risk. If a person has a suspicion that something might happen, that is insufficient; if he knows that something is happening—clearly, the prosecution must prove knowledge—he would be at risk.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

I do not have a problem with the paragraph dealing with bodies corporate, but wish to comment on the word ``connivance''. I have been thinking about what the Minister said earlier and counsel him to acknowledge that an issue is developing with regard to the term ``connivance''.

For example, in the Montgomeryshire hill pack, which is the example that I know best, the hunt master tends to look after all the dogs. The farmers know where the hunt master will hunt, and they watch him unload the dogs from the back of a trailer. The hunt master then tells the assembled mass where he intends to go. Everyone else pretty much watches; they do not actively get involved in any aspect of tracking or killing the fox. Does that constitute connivance? I am comfortable with the Minister's comments about bodies corporate, but it is necessary to define clearly what constitutes connivance. I am sure that he understands my point, and I welcome his views.

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

Connivance requires more than mere specificity. It requires an active knowledge and some other act to show that there was implicit consent to use the land or someone's dogs. Connivance is about an offence for which knowledge plus something else is required. I have described implicit consent. If someone were merely on his own land or in his garden watching a hunt unload, and was not participating or giving consent to use of the land, that would not be an offence. Such people would be spectators and not involved in the act. Likewise, if I see a burglary occurring and I am passive, I am not committing any offence. However, if I were to help the burglar to get out of the window, I would be putting myself at some risk.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

That is very interesting. It goes without saying that the act of observing on foot or sitting on a horse would not make me any more culpable than if I simply observed from a distance someone unloading dogs. If the Bill is enacted in its current form, this issue will be extremely important.

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

Certainly, sitting on a horse is not an offence. If the horse were normally used for the purpose of hunting, and I was a huntsman who usually went to a place where hunting took place, I would certainly be putting myself at a huge risk of a jury concluding that I had sought to breach the legislation. I am not sure that the difficulties that the hon. Gentleman is trying to identify are really there. The mere act of sitting on a horse is not an offence, so it is not covered by the schedule. A jury would consider all the surrounding circumstances before concluding that an offence had been committed. It is possible to envisage that sitting on a horse, plus the rest, might add up to an offence being committed.

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

Will the Minister comment on the situation in which a landowner is aware that hunting may take place on his land on dates as yet unspecified, but is not aware of a particular occasion when hunting had or was about to take place?

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

Again, that would be a matter for the jury and the courts to determine. If the landowner knows that hunting is to take place—he may not know the precise time—and implicitly consents to it, he is putting himself at risk of prosecution.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

This has been a useful, if short, debate on paragraph 6, and I am grateful to the Minister, to my hon. Friend the Member for Gainsborough and to the hon. Member for Montgomeryshire for their contributions. Several issues have been teased out, demonstrating the fact that all such Bills present similar difficulties. The Bill on foxhunting promoted by the hon. Member for Worcester threw up equally difficult problems, as have others during previous Parliaments. It is therefore incumbent on us to remember what happens when Bills that contain expressions or words that can lead to confusion reach the statute book.

The debate centred on the difference between being a principal to an offence and being a secondary offender under paragraph 6(2). Is the word ``connivance'' merely a smart way of saying ``aiding and abetting'', or another way of saying that the defendant was an accessory before or after the fact? The jargon in relation to all those concepts has changed over the years, but I am not sure whether the concept of connivance is used every day in the courts—magistrates courts, that is, not criminal courts. The Minister slipped into error when he referred to a jury in his response to the hon. Member for Montgomeryshire.

My hon. Friend the Member for Gainsborough asked who would be guilty in a case involving the Brocklesby, which is a private hunt. In those circumstances, it might not be appropriate to prosecute under paragraph 6, which deals with a corporate defendant, but to prosecute an individual or a number of individuals. That is another example of how the Bill is a little ragged at the edges.

I shall not press the amendment to a vote, but I want to revisit the issue on Report—or for it to be revisited in another place. We lawyers do our best, if I may say so to the Minister, but nowadays, sadly, legal expertise is greater in the other place than it is in our House.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I have often been tempted to say what I just said; I shall not say it again.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

The hon. and learned Gentleman is hugely talented.

Mr. Garnier: I am, and I want the hon. Gentleman to write to me to say so. He and I have had some interesting discussions while travelling alone to the far east—[Interruption.] What I meant by that is that we were not travelling with the hon. Member for Lewisham, East (Ms Prentice).

The amendments require further debate, but I shall not prolong the Committee's deliberations—nor shall I divide it. The Minister may want to table Government amendments on Report to deal with the difficulties that we have highlighted in respect of the expression ``or connivance'' or to tighten up the definition of the word ``consent''. If that is not done in this House, the other place would be a sensible forum. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 119, in page 20, line 19, at end insert—

``(7) Hunting shall be permitted where—

(a) it is conducted at the request of the landowner (within paragraph 22) in order to protect livestock, fish, fowl (including wild fowl), gamebirds, crops or grassland or trees, saplings or plants; or

(b) to manage the population of the quarry species in the interest of that species or other species of animals, birds or fish; and

(c) the person hunting the wild mammal reasonably believes that hunting is an appropriate means of achieving such protection or management having regard to all the circumstances (and including economic and conservation considerations) the welfare of the quarry species and other species of animals, bird or fish and the safety of other users of that or nearby land (including roads and other rights of way).''.—[Mr. Lidington.]

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this we may take the following amendments: No. 51, in page 20, line 22, leave out `stalking' and insert `hunting'.

No. 54, in page 20, line 28, leave out `out of cover'.

No. 55, in page 20, line 30, leave out `stalking or flushing out' and insert `hunting'.

No. 56, in page 20, line 32, after `livestock', insert `fish'.

No. 57, in page 20, line 32, leave out `or crops' and insert

``crops, grassland, plants or trees or to manage the population of the quarry species in the interests of that species or other species of animals, birds or fish.''.

No. 58, in page 20, line 34, leave out from `consumption' to `or' in line 35.

No. 59, in page 20, line 36, after `hunt', insert `or kill'.

No. 120, in page 21, line 8, at end insert—

``(8) No offence shall have been committed under paragraph 1 where the primary intention of the participants is that game birds are to be flushed to be shot and that either one, some or no species of mammals are to be shot if flushed.''.

No. 90, in page 21, line 28, leave out ``searching for'' and insert `hunting'.

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

I rise to speak in support of the amendments. At the outset I tender my apologies to you, Mrs. Roe, the Minister and all members of the Committee for the fact, for which I am sure they will be extremely appreciative, that I will not be here this afternoon, as I shall be on the Opposition Front Bench for the Second Reading of the important House of Commons (Removal of Clergy Disqualification) Bill, on which I shall have the responsibility of winding up for the Opposition. I shall interpret my winding-up responsibilities as widely as I can.

It is also right to say at the outset—and I know that the Committee will understand this—that I cannot possibly hope, now or at any time in the future, to match the urbanity and gravitas that my hon. and learned Friend the Member for Harborough customarily brings to our proceedings, any more than I can hope to match the combination of intellectual ferocity and quick-wittedness for which my hon. Friend the Member for Aylesbury is renowned in all parts of the House. However, on the plodding basis on which I ordinarily proceed in these matters, I shall endeavour to make the case and to ensure that the hon. Members for West Ham and for Pendle remain awake for the remaining 14 minutes before lunch.

My hon. and learned Friend is quivering, so I shall give way.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I wanted, with my hon. Friend's consent and your permission, Mrs. Roe, to inform the hon. Member for Pendle, as he has just been mentioned, that I have fortunately been able to get hold of a copy of ``Archbold'', and the word ``connivance'' does not appear in the index.

Photo of Gordon Prentice Gordon Prentice Labour, Pendle

I knew that—[Laughter.]

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I wanted to intervene because I wanted the hon. Gentleman to tell us that he already knew that.

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

The hon. Member for Pendle may have known it, but he will not be surprised to know that I did not, and I shall not lightly recover from the body blow that my hon. and learned Friend has just inflicted on me.

As you will be keenly aware, Mrs. Roe, as an assiduous student of the Bill, and as I think the Committee will know, sub-paragraph (7), if amended by amendment No. 119, would permit hunting where a landowner requested it in the interests of conservation, whether of animals, birds or plants, or in the interests of the management of the quarry population. That would be a much more realistic and practical exception, and we are concerned with exceptions in this debate. It would be an exception that took proper account, in a way that my right hon. and hon. Friends and I believe is not so now, of the issues of pest control, conservation and animal welfare.

The Bill already recognises that it can be acceptable to hunt a fox, a hare or a rabbit in certain circumstances, especially if it is judged necessary by those engaged in the activities to protect livestock, fowl, gamebirds or crops—or indeed for the purpose of obtaining meat for consumption, although, if I remember rightly, not meat that is then passed to a retailer for onward sale. It is also possible for a bird of prey to hunt a particular mammal.

It is extremely difficult, if not impossible, for us in the Committee to draw the line between when hunting in the form of stalking or flushing finishes and hunting otherwise than that commences. Given the need to use dogs for hunting in circumstances that hon. Members on both sides of the Committee admit can—and probably will—arise, it would be sensible to recognise that hunting should be permitted if, and only if, it satisfies the conditions in the amendment.

Of course, I am always happy to invoke Conservative witnesses in support of Conservative amendments. However, it is an infinitely more juicy and salacious prospect to be able to invoke the support, whether partial or total, of Labour witnesses. Justifying the amendment leads me to point to the admirable, well-thumbed tome that is the Labour party home affairs briefing on the Bill, which was circulated in December. I feel sure that its content is well known to all members of the Committee. Indeed, the hon. Member for Worcester can probably recite it verbatim off the top of his head. However, for the edification of the Committee and the enlightenment of those not immediately conscious of that content, I should point out that, interestingly, it acknowledges possible implications for Welsh farmers, and that such issues will be taken into account during the passage of the Bill.

It is now 6 February and the Committee is due to conclude consideration on 8 February, but as yet we have heard nothing from the Government on that subject. When do Ministers intend to raise it? Perhaps entirely appropriately, given the circumstances, the brow of the Under-Secretary is duly furrowed. He is looking at his notes and he has his fountain pen in his hand, but I am afraid that that does not help us—[Interruption.] I was about to say that I am happy to look to the Parliamentary Secretary for enlightenment, but I see that the Under-Secretary wishes to help her and me.

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

May I join the hon. Gentleman in apologising to the Committee? I, too, will be dealing with the House of Commons (Removal of Clergy Disqualification) Bill this afternoon, and will therefore be unable to reply to his contribution. However, my hon. Friend the Parliamentary Secretary will be more than able to deal with it.

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

I am grateful to the Under-Secretary, and I do not doubt that the hon. Lady, who is a dextrous Minister, will be more than capable of dealing with the matter. Indeed, it is she who must therefore explain precisely when the Government plan to deal with it. Amendment No. 119 would enable the Government at least to make a start towards addressing the plethora of problems that will almost assuredly arise in Wales if this pernicious Bill should by chance, and apparently against the Government's own wishes, reach the statute book this side of—I choose the date entirely at random—3 May.

In the briefing for Members of Parliament, the Farmers Union of Wales explained its position clearly, and we are duty bound to take account of it. Although it remains neutral on hunting as a sport, believing it to be a matter of individual conscience, it firmly supports the right of farm owners and landowners to hunt and destroy vermin to contain livestock losses that would otherwise inevitably transpire as a result of predation. The FUW represents a substantial number of sheep farmers in Wales, for whom fox predation is a particular, and perhaps growing, problem. Given the nature of Welsh terrain, it is virtually impossible to control foxes without the use of dogs. Many agricultural areas adjoin large tracts of forest with substantial and often dense undergrowth. If fox populations are not controlled in those areas, farms adjoining forestry land will be severely affected by fox predation.

One of the conclusions reached in the Burns report, as the FUW helpfully reminds us, is that the fox population causes more damage to sheep-rearing and game-management interests in the upland areas, where there is a perceived need for control, and where fewer alternatives are available to the use of dogs, either to flush out the guns or, indeed, in digging out.

On 27 June last year, the National Assembly voted to call on the United Kingdom Government to give it the right to decide on a hunting ban in Wales. That vote was carried by 28 votes to 27. Given the impact that a ban on hunting would have on the upland areas in Wales, the FUW will continue its pressure to devolve responsibility to the Assembly.

The FUW recognises that there are circumstances in Wales, which are distinct from, and possibly more serious and demanding, than those applying in other parts of the UK. The advocates of devolution can hardly disavow the rights of the National Assembly on a matter in which one can demonstrably see that there are local and regional differences, or the Assembly's entitlement to legislate to take account of those differences.

The FUW believes that farmers need a range of methods to control pests, depending on individual circumstances. Although much debate surrounds the advantages and disadvantages of fox control, the union has noted that previous independent inquiries have inevitably concluded that foxhunting involves less cruelty than most other methods of control. It is peculiarly unfortunate, although entirely coincidental I am sure, that the hon. Member for West Ham has absented himself from the Committee. As I make the point, the hon. Gentleman has just returned to the bosom of the Committee.

I shall not repeat my point, as I may fall into disfavour with you, Mrs. Roe. I shall say, simply, that the FUW's view is that hunting can be less cruel than other methods of pest control. It believes that the practice of the sport should be retained for the purpose of management of the population—an issue which should neither be lost on, or lightly disregarded by, the hon. Member for West Ham. The FUW said that in the past 50 years there had been no significant advances in the development of alternative control methods that are acceptable to all sides in the hunting debate. It emphasised that the use of dogs remains an important pest control method for many farmers.

That is a brief encapsulation of the case for amendment No. 119. I should like briefly to cover amendments Nos. 51 and 55, which would remove inappropriate references to stalking and flushing out. There is no definition of either of those terms in the Bill. In any case, references to stalking foxes, hare and rabbits is nonsense—stalking applies to deer. It is not entirely clear what the term is supposed to denote in the context in which it is liberally and rather inexplicably used by the Government's draftsmen. It is not clear either what conduct constitutes flushing out. For example, Welsh gun packs use dogs to flush foxes from woods, but sometimes foxes can be hunted in the woods before they are flushed. Will that aspect be covered by the exception? If not, the exception will be unworkable for what is considered to be an important pest control method in Wales. Stalking and flushing do not fall within the definition of hunting in paragraph 21. Given that they are not part of the offence, there should be no need for them to be listed as exceptions to it.

Amendment No. 54 would remove the words ``out of cover'', which is not a clear term. What does ``cover'' mean? Does it mean in a hollow tree or a bush? Does it include a mammal that is lying in a ditch? Does it incorporate the concept of lying in long grass, or in a wood, but not inside a tree, bush or undergrowth? If such terms are to have legal force and if they are to be the subject of proceedings, Ministers must be responsible for clarifying the meaning of the terms used.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.