Clause 45 - Interpretation

Hunting Bill – in a Public Bill Committee at 8:55 am on 27th February 2003.

Alert me about debates like this

Photo of James Gray James Gray Conservative, North Wiltshire 8:55 am, 27th February 2003

I beg to move amendment No. 361, in

clause 45, page 18, leave out line 16.

During an exchange with the Minister before the Committee, I was trying to think of an analogy for this situation. Should I say, ''Once more into the breach, dear friends'', or comment that we are coming to the end of the hunting day but there is still plenty of life left in the hounds and we will kill a few foxes before the end of it? I cannot really think of a good analogy, however.

I am glad that I shall not have to be here on Tuesdays and Thursdays at five to nine from now on, although quite what I shall do with my time—[Hon. Members: ''Hunt.''] That is a good idea. I shall fix up as many hunting appointments as I can before this mob on the Labour Benches prevents me from doing so. I am quite looking forward to being relieved of all this, I must say.

Under clause 45(3), any person who owns an interest in, manages, controls or occupies land may be taken to be a person to whom the land belongs and thus potentially a criminal under clause 4. Frequently there are many so-called interests in land. As a technical term in law, that includes a right of way across property. It is ridiculous to criminalise parties with interests in land, such as those with a right of way, who have no control over the premises. Therefore, it is important to amend clause 45(3).

Any liability should be restricted to the occupiers, whom case law has defined as those who have sufficient control of the premises to make them liable. The definition of someone to whom land belongs is so widely drawn here as to capture those with only a nominal, indirect or transient interest and involvement in the land, which is clearly unfair. A person with a minority interest in the land in question might strongly object to its use for hunting but be unable to prevent it. The Minister has told us that that has often been the case with illegal hare coursing. People do not want land to be used for that, but have often had no option but to allow the thugs and criminals to carry on doing it. It is unfair that even though such people are, technically speaking, the landowners, they should become criminally liable for something that other people are doing.

An owner of land might be neither its occupier nor its controller in practice. He might own the freehold, but the land might be tenanted or leased to a third party. The owner might be hundreds of miles away

when the offence is committed or alleged to have been committed. To prosecute that individual would be absurd, because they might know nothing abut the activity.

The real problem stems from the criminal offences created in clause 4, which, in effect, make the landowner responsible for policing the enforcement of the legislation. When prosecuted, they will have to prove that they have not knowingly permitted land belonging to them to be used for hunting. That reverses the burden of proof. It should be for the prosecution to prove that knowing permission was given, not vice versa. In any case, it is not at all clear what one has to know, in order to commit the offences. Will a dog owner who knowingly permits his dog to be used for flushing out be caught if an offence is inadvertently committed? Will a landowner who thinks that people are using his land for lawful activities be guilty if an offence is then committed? If the landowner thinks that those people are perfectly legitimate but they inadvertently commit a crime, is he guilty? For example, a game shoot might inadvertently put up a hare, which is then shot by the guns. The landowner who allowed his land to be used would not have wanted any crime to be committed, but unless the dogs used were registered, the flushing of the game to the guns would be an inadvertent crime, committed not only by the person who shot the hare but by the landowner who allowed the shoot to occur on his land.

Photo of Gregory Barker Gregory Barker Conservative, Bexhill and Battle

I am loth to interrupt, but I should like to expand on the point about dogs. If several dog owners participate in a shoot, but each believes that their dog is one of two being used for flushing out, there could be three dogs being used for that purpose. The third dog would be unknown to the other two owners, but all three would be committing a criminal offence.

Photo of James Gray James Gray Conservative, North Wiltshire

That is, of course, the case. It is not directly pertinent to the amendment, but there is a link. It could be that even if the landowner on whose land such an offence occurred did not know that that was happening, he would be guilty because he allowed his land to be used for it. We come back, indirectly, to the question of intent. Did the landowner intend to allow the hunt, or the criminal, to carry out the offence on his land? Plainly, if he did, that might be an offence, but there might be many circumstances in which it could be proved that the landowner did not know that the offence was being committed and did not want it to happen.

Our amendment, which leaves out line 16, would make the matter much clearer. The Bill would read:

''For the purposes of this Act land belongs to a person''

if he

''manages or controls it''

or

''occupies it.''

That is straightforward. The amendment would delete the words

''owns an interest in it''.

The person who owns an interest in the land may well have nothing whatever to do with the crime committed

on it. We hope that the Government will see the logic in the amendment and agree to it.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. Gentleman rightly says that the amendment would narrow the definition by removing the point about the person who ''owns an interest'' in the land. Narrowing the scope of the definition of when land belongs to a person would weaken the Bill. Let us take the example of clause 4 and the offence of knowingly permitting land to be used for hunting. If a person who owns an interest in that land commits that offence, why should they not be found guilty?

Perhaps the reason why the hon. Gentleman fears some unfairness is based on a misunderstanding. The points that he made in his introduction sounded reasonable and sensible. It is recognised that the land ownership and management and control of land are not always straightforward. For example, there is land owned by colleges or land involving shared and multiple ownership. Since I took up office, I have been dealing with a number of issues relating to common land and that has certainly brought home to me the complexities of land ownership.

The important point is that, for an offence to be committed by an individual, it is necessary for him or her knowingly to have given permission for hunting to take place. That is crucial to an offence being committed and therefore a conviction being obtained. That provides the necessary protection against any danger of unfairness, which is clearly at the heart of the comments made by the hon. Gentleman when introducing the amendment.

The trouble with deleting the mention of individuals who own ''an interest in'' the land is that that interest might well result them in acting in such a way that an offence is committed. They would be the responsible individuals. Surely it would be wrong to delete the provision relating to such people. As I indicated, for an offence to be committed, it is necessary for an individual knowingly to have given permission for hunting to take place, which provides the necessary protection.

Photo of James Gray James Gray Conservative, North Wiltshire

The fact that, under clause 4, that has to be done knowingly is some safeguard. None the less, clause 4 reads:

''A person commits an offence if he knowingly permits land which belongs to him to be entered or used in the course of the commission of an offence''.

Note that it does not state, ''for the purpose of committing the offence.'' That is quite plain. In other words, the landowner may not know what people intend to do, but in the course of doing the thing that is wrong, the landowner may well be guilty.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I think I understand what the hon. Gentleman is saying. In other words, if a landowner were to allow somebody on to their land and thought that they were just going to park a car, without knowing that an offence was going to be committed, would that landowner then be caught? No, he would not. I understand the hon. Gentleman's fear now that

he has explained it. The landowner would not be guilty of an offence in that event because he must have knowingly given permission for hunting to take place in order to have committed an offence.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Environment, Food and Rural Affairs)

I was not going to make a speech, although the matter is important. I share the hon. Gentleman's concern about the clause, but it might be better if the definition were wider. Taking the example of common land, does the Minister accept that there could be a problem if those who own an interest in the common land and give permission do not consult others who own an interest in the land? In such cases, all with an interest in the common land would be caught in the curtilage of committing an offence, although they did not knowingly give permission.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I understand the hon. Gentleman's point, but the reverse is true. If there are a number of owners of a piece of land, and one of them were to give permission for people to come on to the land knowingly for hunting to take place, that individual would be guilty of the offence and the others would not. The others would have to knowingly share in that giving of permission, in order to share in the commission of the offence.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Environment, Food and Rural Affairs)

That answer is helpful but, as written in the Bill, all of those who own an interest in the land would be caught in the curtilage of the offence. There is no other provision referring only to those who own an interest in the land and give permission. It would be helpful if the Minister said whether he believes that further clarification is required in the Bill.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I assure the hon. Gentleman that it is not. There is no lacuna in that case. In order to commit the offence or share in the committing of the offence, the individual would have to give permission knowingly for the hunting to take place. That person would have to share knowingly in the decision that led to the offence. Someone who shares ownership of land and does not have 100 per cent. ownership—for example, someone with, a 20 per cent. share—and who knowingly gives permission for the land to be used commits an offence. That is absolutely clear. Those who own the other 80 per cent. of the land, but do not knowingly give permission are not associated with the offence. The constituent elements of the offence are clear. They have to be in place for an individual to be guilty of that offence. That is clear without needing to repeat it in the Bill.

Photo of James Gray James Gray Conservative, North Wiltshire

I am still rather troubled by the matter. I accept the point that the Minister makes about collective ownership. That seems a reasonably sensible point, but the way in which clause 45 relates to clause 4 seems worrying. Clause 4(1) does not say that a person commits an offence if he allows hunting to occur or allows his land to be used for hunting. Clause 4(1) merely refers to land being entered or used in the course of a commission, not for the purpose of a commission. The phrase ''course of a commission'' is very important. If people stated that they were going on to land for other purposes, the collective owners would believe that those people were doing so legitimately and would not realise that there was an

intent to commit the crime, but the crime may still be carried out. That is very worrying.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

No, the hon. Gentleman again misunderstands. I understand why he is worrying, and I hope that I can satisfy him on the point. Let me go back to the example of individuals asking for permission to park. Let us imagine that they ask an individual, ''Can we park our vehicles here? We are going for a walk on the hills.'' There is no suggestion that there is any knowledge of an intention to commit an offence. In that event, the person who shares in the ownership of the land, or a landowner, would not be committing an offence. If the person were to ask permission to go on to land with dogs in a trailer to undertake hare coursing, and the purpose for which that request was being undertaken was clear, the person would be knowingly committing the offence indicated here.

In areas concerning legal interpretation, it is as well to take formal advice from lawyers. I am happy to write to members of the Committee to put the advice on that point on the record because I appreciate that the hon. Gentleman would like to hear a legally sound interpretation. However, I am confident that my interpretation is correct.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I understand the points that the Minister is making in response to the intervention by my hon. Friend the Member for North Wiltshire (Mr. Gray). Will he address corporate ownership of a piece of land by a limited company, a trust or some other form of legal, non-human instrument? Because such a body is just a set of bits of paper, it cannot think or act by itself, and can do so only through human beings. I can understand a situation in which the land agent gave permission for hunting to take place on the land, because we can clearly see from the Bill that the land agent, as a human being, will be liable. I dare say that the corporation will be liable because of the act of its servant. Where a number of servants—some of whom know about the illegal permission and some of whom do not—act for a company, however, one is left with the vicarious liability for a criminal offence committed by a company. The law on that matter has been fluid for a little while, and whereas in some respects a company can be vicariously liable for the offences of its servants and agents, in others it cannot. I wonder into which category hunting and the use of land for hunting will fall.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. and learned Gentleman always raises interesting questions, and I hope that I can give him a sensible answer. A corporation is, of course, legally a person in terms of the responsibilities for the use of land. Clause 44 covers offences by companies in the same way as the ownership of land by a body other than a company. In order for a prosecution to succeed, it would be necessary to show that an officer of the company consented or connived in the commission of the offence. The knowledge would have to be proved in relation to a company, or a person acting on behalf of a company, in the same way as it would in relation to an individual.That is the sort of area in which it would be sensible for me to provide legal advice to members of the Committee for the sake

of clarification. The Bill will not change the situation in relation to a company. There are, of course, a variety of situations in which the liability of a company depends on demonstrating that an individual was knowingly acting on behalf of a company. The normal requirements in relation to the actions of a company or its representatives would apply here in the same way as they apply across the generality of the law.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

My ongoing concern is duress, which we have discussed at length. I hope that the Minister can assure me that there will be some guidance on how proactive somebody in that category would need to be in order to prevent their being prosecuted. I raise that point because there will be a policing issue; at the beginning, at least, there will be a lot uncertainty among people in that category.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs 9:15 am, 27th February 2003

The amendment relates narrowly to people who own a share in the land and does not take us into more widely into the clause. However, the points that I made about duress in a previous debate apply equally to this clause. That may be the response that the hon. Gentleman is looking for.

The hon. Member for North Wiltshire has raised a number of concerns, but members of the Committee can be assured that to include people with a share in land ensures that responsibility is correctly identified. It certainly would not enable a person to be prosecuted who had not committed the offence. That is at the heart of the issue. It would be odd to exclude someone with a share in the land, as they might commit the offence. For that reason, I am not willing to accept the amendment.

An inadvertent effect of the amendment would be to remove the power of an owner of an interest in unoccupied land to give permission for registered or exempt hunting to take place. I am sure that that is not the hon. Gentleman's intention. At present, such permission can be given by the occupier, where the land is occupied, or by the owner or manager where the land is unoccupied. I refer the hon. Gentleman to clauses 27(2)(c) and 28(2)(c). The amendment could prevent hunting on some unoccupied land.

I hope that I have said enough to satisfy the hon. Gentleman, but I also undertake to write to him and to copy the letter to other members of the Committee, to make explicit the legal advice on the points that he has raised.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Environment, Food and Rural Affairs)

I was interested in what the hon. Member for North Wiltshire said, because I have sympathy for his argument. However, until I had heard the debate, I was not sure whether the amendment was the best way to deal with the point. The Minister addressed the lacuna in the picture that was drawn up. There is perhaps a logical connection between knowing permission and the person who is knowingly permitting it. However, I still have concerns. The Minister said that he would provide the Committee with a note from the Department's lawyers to clarify any residual matters on this point, and on that basis I feel reassured. Having listened to the Minister, I cannot support the amendment.

Photo of James Gray James Gray Conservative, North Wiltshire

Like the Minister, I am no lawyer and would not claim to be. There is definitely a technical question here. The law with regard to the ownership of land seems to me to be complex and difficult, and the way in which clause 45(3) reads into clause 4(1) is particularly worrying. Clause 4(1) does not say:

''A person commits an offence if he knowingly permits land which belongs to him to be entered''

for the purpose of carrying out the crime. In other words, the intention is not included in clause 4(1). It is still slightly worrying that somebody who owns an interest in land may inadvertently permit a crime to be carried out on his land without knowing about it. He may allow the criminals to enter his land and to use it in the course of the commission of an offence under subsection (1), but he would not know that it would be so used. However, the subsection does not contain the word ''purpose'', so the owner does not know that people intend to commit a crime when they go on to it. The words used are ''in the course of'' rather than ''for the purpose of''.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

Clause 4(1) is explicit. It says:

''A person commits an offence if he knowingly permits land which belongs to him to be entered or used in the course of the commission of an offence under section 1.''

Ownership therefore includes partial ownership, so the words ''knowingly permits'' are clear. The hon. Gentleman is wrong.

Photo of James Gray James Gray Conservative, North Wiltshire

The Minister should not jump to his feet so quickly. I, too, read the clause out and my point has nothing to do with the words ''knowingly permits'', which mean allowing people to go on to land during the commission of the offence, not for the purpose of committing the offence. The person who allows someone to go on to the land in the course of committing the offence may not know that an offence is being committed. Clause 4(1) states:

''A person commits an offence if he knowingly permits land which belongs to him to be entered or used in the course of the commission of an offence under section 1.''

The problem is the words ''in the course'' of carrying out the offence, not the words ''for the purpose'' of carrying out the offence. The person owning the land may not know that that is the other person's purpose.

Textual analysis becomes tiresome, but I shall give way to the Minister.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

It is clear that the person must know that he is contributing to the commission of an offence. I understand now that it is worth re-reading the clause a number of times to understand the hon. Gentleman's point. I think that his interpretation is wrong, but I shall deal with the matter authoritatively in the response that I promised.

Photo of James Gray James Gray Conservative, North Wiltshire

Textual analysis is tiresome and tedious, and is a matter for lawyers. Neither the Minister nor I is a lawyer, so perhaps we have had enough of that. However, I think that the word ''purposefully'' or ''intentionally'' in clause 4 would be better. The Minister is prepared to ask his advisers and lawyers to look at the matter to ensure that no inadvertent crime could be committed, which is what we are keen to avoid. I am reassured, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of James Gray James Gray Conservative, North Wiltshire

I beg to move amendment No. 362, in

clause 45, page 18, leave out line 20.

Photo of Mr George Stevenson Mr George Stevenson Labour, Stoke-on-Trent South

With this it will be convenient to discuss amendment No. 363, in

clause 45, page 18, line 21, leave out 'or', and insert

'at the time of the commission of an offence, and'.

Photo of James Gray James Gray Conservative, North Wiltshire

Amendment No. 362 and, to some degree, amendment No. 363, bear some resemblance to amendment No. 361. They refer to whether a person could be convicted of inadvertently committing a crime. Simple ownership of a dog that is used in the commission of an offence should not necessarily make that person liable to criminal prosecution, nor should simply having charge of that dog. The amendments would ensure that the offence of someone knowingly permitting a dog belonging to them to be used for hunting would apply to a dog that someone was in charge of and had control of at the time the offence was committed.

If someone owns a dog but is not in control of it when the crime is committed, why should they be liable? Equally, it might be possible for someone to be in control of the dog and, therefore, committing the offence without having ownership of it. The purpose of the amendments is to rectify that anomaly.

Common law currently makes adequate provision for situations in which a person aids, abets or counsels the commission of an offence or provides the means—the ownership of the land or the dogs—and we debated that on clause 4. The point is that it is wholly irrelevant who owns a dog. The concept of ownership is unhelpful. A family dog does not belong to one individual. A family of four people having four dogs would be said to own them jointly. The concept of ownership does not help in pursuit of animal welfare, which is what the Bill is supposed to be about.

The drafting seeks to prevent a person from knowingly permitting a third party to use their dog for hunting. Whether that person owns the dog is not important. If I own a dog and give it to a friend to look after and an offence is committed while that person is in charge of it, I would be liable to prosecution. That is a serious possibility because the definition of hunting is woefully imprecise and includes dog walkers whose dogs search for a scent. If I know that someone is likely to walk my dog and commit an offence, I commit an offence of knowingly permitting a dog to be used to commit an offence. That is madness. A person who uses any dog, regardless of ownership, and who is in charge and control of it at the time of the offence is the person who should be guilty. The person who actually has control of the dog should be the person who commits the offence, rather than the person who owns the dog. The ownership is incidental.

The offence created in clause 4 should relate to the person with charge and control of the dog at the time the offence of knowingly permitting that dog to be used for hunting was committed, not at the time the offence of hunting was committed. The amendment is straightforward and would prevent the inadvertent

conviction of someone whose dog was used by someone else to commit an offence. I hope that the Government will the see sense of it.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I hope that I can reassure the hon. Gentleman. As he rightly says, the Bill defines the circumstances in which a dog belongs to a person. That includes three elements; where a person owns it, where a person is in charge of it and where a person has control of it. Amendment No. 362 would narrow the definition, removing from its scope the person who owns the dog. To narrow the definition of when a person belongs to a dog—[Hon. Members: ''What?''] Sorry, when a dog belongs to a person. I realise that there was an element of truth in my slip there. To narrow the scope of the definition of when a dog belongs to a person would weaken the Bill.

Under clause 4(2):

''A person commits an offence if he knowingly permits a dog which belongs to him to be used in the course of the commission of an offence under section 1.''

To show how the amendment would introduce a real problem, I pose a question. If a dog owner knowingly permits another person to use his dog for illegal hunting, why should he not be guilty of an offence? That is a straightforward question, which exposes the mistake that the hon. Gentleman is making in the amendment.

The hon. Gentleman used one or two illustrations. An innocent walker cannot be found guilty because if the dog hunts and the innocent walker does not, he is not committing an offence. That returns us to intention, although I hesitate to return to that. Intention is an inherent part of the concept of hunting, as we have explored several times. If an innocent walker cannot be guilty, a person who lends a dog to an innocent walker cannot be guilty except in the unlikely and slightly absurd situation of the person lending the dog intending the innocent walker to go hunting. That reductio ad absurdum demonstrates that the clause does not give rise to the problems that the hon. Gentleman fears.

Amendment No. 363, too, seeks to change the scope of the definition of when a dog belongs to a person. The present wording is clear; a dog belongs to a person if he is in charge of it. There is no need to clarify that definition with the explanation that the person had to be in charge of the dog at the time of the offence. The relevance to the offence of the fact that a person is in charge of a dog will depend on the circumstances of the individual case. Clearly, courts will have to make decisions on that by looking at the circumstances surrounding the alleged offence.

Photo of James Gray James Gray Conservative, North Wiltshire

I am slightly puzzled. Let us imagine that I am in control of a dog that was used by someone different in the course of an offence last month. Surely, the clause would allow the constable to arrest me because I am in control of the dog today, even though I had nothing whatever to do with the crime.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

In that case, one could not be guilty of knowingly being involved in the commission of the offence. One would have an absolute protection. Again, I understand the protection that the hon. Gentleman seeks, but I can reassure him that it is not

needed. It would be an absurd misinterpretation of the law to say that someone was in charge of the dog and associated with the commission of an offence about which they knew nothing, in relation to which they had no intention and, at the material time, did not have control of the dog. No court would seriously entertain that. I can fairly confidently say that even were such circumstances brought to the attention of the Crown Prosecution Service, the case would be sent back immediately with a tart note on the file, since the offence could clearly not have been committed.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I want to suggest one or two examples so that the Minister can help me. I have no doubt that the purpose behind the provisions is to prevent people from hiding behind the criminal acts of others. Unfortunately, whether I approve of the definition that says that those people are committing criminal acts is neither here nor there in the context of our discussion.

I want to paint a picture for the Minister to see what his response is. Let us assume that I am the owner of one or two male dogs and own a reasonably large garden. One afternoon, I happen to be sitting in my garden with my dogs at my feet. There may come a time when they become uninterested in my company.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I hasten to assure my hon. Friend that this is an entirely hypothetical example.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Exactly. My dogs set off around the garden, doing what dogs do. For all I know, they may discover that a little farther away is a bitch on heat. They set off, guided by the scent of the bitch, but during their travels they become interested in the scent of quarry—an animal for which hunting is not permitted under the legislation.

As the owner of the dogs, I may be considered to be in charge of them. Under road traffic legislation that deals with the control of a motor car while under the influence of drink, one does not physically have to be driving the car to have control of it. My dogs may perform an act of illegal hunting while I think that they have gone off to do whatever—in fact, I do not care what they have gone off to do. One might say that I was reckless.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

In the course of this extremely unsuitable story which, not only in context but in substance, is completely inexplicable to some of the younger members of the Committee, I would be grateful if my hon. and learned Friend would explain in more detail the nature of the quarry for which his dogs are searching.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am not a dog psychoanalyst, but I assume that the dogs that I own under the terms of clause 45(4)(a) have set off on a frolic of their own and have gone in search of a bitch on heat. During the search, they are distracted by the scent of a hare, a fox or some other animal that the Bill makes it unlawful to hunt. As the owner of the dogs and as someone who may, under law, have charge of them—in the event, I could not care less one way or the other what they are

doing—I may be charged with a section 1 offence because animals that are in my ownership, perhaps as a matter of law under my charge, are hunting a wild mammal.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

I suspect that the hon. and learned Gentleman will not agree with me when I say that he is speaking absolute nonsense. He has not read clause 45(2). In his example, he would not be engaging or participating in a pursuit, nor would he be employing a dog in a pursuit.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

That all depends on whether I am reckless. I can read subsection (2) as well as the hon. Gentleman. Many strange examples have been produced in the Committee that will bring into the sphere of criminality many people who consider themselves to be innocent. I want to ensure that the Minister understands the potential ambit of the legislation.

I was assured by the right hon. Gentleman before the short recess that innocent dog walkers will not come under the threat of criminal proceedings. The Government have also tried to reassure us in regard to whether people will be caught in the criminal law. However, when we are expanding criminal law to cover those who own dogs or have the charge of a dog, we must ensure that the public who will be caught by the Bill know where they stand. We are not dealing only with the actions of a human being, as we would be with the human crime of a bank robbery, murder or assault. We are dealing with the thought process or state of mind of a human being and the actions of a dog or dogs. Therefore, although to some extent the example that I am producing is worthy of ridicule, it is not wholly fanciful. The Bill has thrown up examples of problems that might, at first blush, seem ridiculous and fanciful but which, when analysed, are likely to have unforeseen consequences. In so far as I have any power as an Opposition Member, I am not in the business of allowing the House to pass legislation that produces foreseen ridiculous consequences. We have to tolerate unforeseen ridiculous consequences.

Photo of Nicholas Soames Nicholas Soames Conservative, Mid Sussex

Although my hon. and learned Friend is uncharacteristically introducing a doggist attitude into the debate, he is absolutely right about unforeseen consequences. In an earlier sitting when he was not in the Committee, the hon. Member for Worcester (Mr. Foster) supported an amendment to ban the use of terriers working underground. As a consequence, gamekeepers will not be able to do their job properly—an unforeseen consequence of a ban on hunting.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

That was one of the unforeseen consequences that I was able to draw to the attention of about 250 supporters of the Grafton hunt at a hunt supper last night. To a man and a woman, they simply held their hands up and said, ''We do not believe this. Is this the sort of legislation that this Parliament, of which you are a member, is passing?'' I said, ''I fear so''.

To return to my example, I want to be assured that, when the Minister finally puts the Bill to the general

public as an Act, innocent people will not be caught by it. I mean not people who are innocent in the sense that they have not been found guilty, but people who have not applied their minds to every activity that a dog might get up to, although they have a general idea that dogs chase things and that, if dogs are not kept on a lead and their minds set on a number of dog-like activities, they may bring within the criminal law the individual sitting or walking in his garden who has let his dogs leave his immediate personal vicinity.

I heard what the Minister said about the unlikelihood of the Crown Prosecution Service doing this, that or the other, but we are not talking simply about the CPS. I have every faith that sensible Crown prosecutors will chuck out at first-assessment stage 99.9 per cent. of the ridiculous stories that are brought to their attention with a view to prosecution. However, that does not prevent us from having to anticipate the so-called prescribed animal welfare organisations or their supporters running around the country looking for examples to demonstrate that the law is insufficient to deal with their purposes—their desire for a total ban on any form of hunting. If they can find the most ridiculous examples, which either demonstrate the Bill's inefficacy or cause the Government, the CPS or those who support hunting the greatest amount of embarrassment, they will use those examples. They will take out private prosecutions, which, although they may not lead to a conviction, let alone to a trial, will none the less engage the public purse in huge expense and they will engage the CPS in wasted time and effort in assessing whether it is worth advising the Director of Public Prosecutions or the Attorney-General to take over a prosecution and issue a nolle. They will engage the court service in a lot of wasted time.

Unless we are careful, out of my fanciful example—no doubt amusing to some—will flow a host of unforeseen, expensive, ridiculous and time-wasting consequences. The purpose of my intervention is to warn the Minister that it is one thing to pass legislation with a large majority that has the intended purpose of providing a regime of licensed hunting. It is quite another to translate that intention into practical and workable law, and a regime of law that has and deserves the respect of the public.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

The hon. and learned Gentleman's example may be worthy of a Dr. Seuss book. Nevertheless there is an underlying issue that we have discussed before, but was resolved by one of the discussions during the Portcullis house hearings last September. I had an exchange with a Professor Linzey, who was very much in favour of a ban on hunting with dogs. It transpired that he owned some cats. When I asked him how he felt about the prospect of his cats killing mammals in his garden, he said emphatically that he could not be held responsible for actions carried out by his cats of their own volition.

I assume that Professor Linzey and others would be consistent and transpose the same conditions to dogs, or it would indeed be doggist in the animal kingdom to treat cats and dogs differently. If that is the case—the Minister may be able to confirm that—the concerns of the hon. and learned Gentleman do not really arise.

Many people who own dogs, with the best will in the world, will see their dogs chasing other animals and sometimes killing them. That is what dogs do. It is important that we provide an assurance to individuals that they will not end up in prison simply because, while they were walking their dog, it ran off and killed another animal, such as a fox cub. We all know that dogs have a propensity to do such things and if a dog has done so once, it is likely to do so again. I would like the Minister to put on record an assurance to individuals who have not set out to kill animals, but are reasonably sure that their dogs will behave in such a way from time to time.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Environment, Food and Rural Affairs)

The scenario that my hon. Friend paints is worthy of consideration. However, does he accept that a similar scenario exists as far as farmers are concerned, especially those with young lambs and sheep? In that case, the animal killed by a dog may be a farmed animal. Would he agree that the approach should remain the same for dog owners whether they be resident at home and not taking care of the dog, or taking the dog out for a walk in the countryside without a lead? Owners should take full responsibility for their dogs.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire

I see what the hon. Gentleman is saying. I have not thought it through in detail, but I feel that there is a qualitative difference between a dog killing livestock and a dog killing an animal that is regarded as a pest. I do not believe that anyone present in the Committee is questioning that foxes are pests. We are not ascribing some special status to the fox. However, it seems much more likely that a dog running around in a park will kill a fox, than that it will kill a lamb or another item of livestock. We went through this in the hearings last September, but I do not recall anyone making the point in Committee—perhaps I missed it.

Photo of Lembit Öpik Lembit Öpik Liberal Democrat, Montgomeryshire 9:45 am, 27th February 2003

In that case, if the Minister is satisfied that it is already covered in the record, I agree that I have said all that I need to say. I am sorry that the ridiculous hours that we have passed have prevented me from being present for all the sittings. I hope that—[Interruption.] We can talk about the ridiculous hours outside the Committee. I simply hope that the Minister will give an assurance that what he said before in Committee still applies to the matter. I am sorry if I have unnecessarily detained the Committee.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

First, I want to respond to the issue raised by the hon. Member for St. Ives (Andrew George). Working from memory—I hope that he will forgive me—I think that dogs harrying livestock is an offence under the Animals Act 1971. He may well be aware of that.

I want briefly—I stress that word—to draw the Committee's attention to a circle. The amendments relate to clause 45(4), which refers to a dog belonging to somebody. That phrase appears in clause 4(2), which refers to the ''commission of an offence'' under clause 1. Clause 1 refers to the offence in relation to hunting and that takes us back to clause 45(2). We have to bear all that in mind.

The hon. and learned Member for Harborough talked about his two dogs running around in his garden, which, knowing him, is probably the size of Leicestershire, and the hon. Member for Montgomeryshire (Lembit Öpik) talked about the same thing. In that context, we have to consider clause 45(2) and the circle I have drawn. Clause 45(2) refers to one or more dogs being ''employed''. We have had that debate and you rightly would not let me repeat it, Mr. Stevenson. Clause 45(2)(a) refers to a person who

''engages or participates in the pursuit of a wild mammal''.

Cats have already been mentioned. Everyone else on the Committee seems to have declared their pets. We have two cats called Wayne and Gretzky. Those who are interested in ice hockey, which is probably a minority, will know that Wayne Gretzky was the greatest ice hockey player ever. Sadly, our two cats sometimes hunt birds in our garden. Occasionally, they even catch and eat them or deposit them at our feet. However, I am not employing those cats in the pursuit of birds or squirrels and I am certainly not engaging or participating in that. I am not hunting, even though the animals, acting on their instincts and of their own volition, are. The fear about dog walkers and pests and so on is all nonsense. It has just been dreamed up to create fear among members of the community who may be following the Bill.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I have a couple of points to add to what I have already said. First, the hon. Member for Montgomeryshire seemed to be pursuing equality in the animal kingdom by comparing the behaviour of dogs and cats. I suggest that it is not helpful to pursue that line; one has to pursue logic and common sense in relation to an individual's actions and decisions about particular animals. I can assure him that the innocent walker issue has been dealt with in previous debates; in fact, it has been dealt with exhaustively during the passage of every relevant Bill that has come before the House. It is a regular visitor in Committees and the position is clear.

The hon. Member for St. Ives was right to illuminate the discussion by saying that there are comparisons with the responsibility of the innocent walker taking a dog into fields at lambing time. What matters in relation to the commission of an offence is what the owner does or does not do and their intentions. In the circumstances to which he refers, it is the responsibility of the owner to keep the dog under control. That is accepted by dog owners and felt strongly by farmers. If a dog owner knows that a dog has a proclivity to worry sheep, that knowledge means that their responsibility to take precautions becomes even greater. That is when their intentions and behaviour in relation to their knowledge of the animal are particularly relevant.

On the intervention of the hon. and learned Member for Harborough, I certainly admire his creative talent. The publishers of light fiction should know about it, because his mind has the potential to produce several novels that I would look forward to reading.

It is the intention of the owner of the dog that is relevant to hunting. We have explored that subject on

several occasions. I am not totally sure whether the sexual activity of dogs is relevant to hunting, but I am sure that it is outside the scope of the Bill. I believe that someone quoted in Horse and Hound not long ago described a day's hunting as ''better than sex'', but canine behaviour seems to be more clearly focused than human behaviour. I have considerable doubts about the illustration that the hon. and learned Gentleman offered.

I emphasise that the intentions and actions of the human being are considered when a decision is made about whether an offence has been committed. Of course, a dog must be associated with the activity—otherwise, we would not be discussing hunting with dogs—but, clearly, it is the intentions and actions of the human being that are important.

Having a general idea that a dog chases other animals does not amount to committing an offence knowingly. As the hon. and learned Gentleman said, the Crown Prosecution Service must examine the evidence of any alleged commission of an offence. That is the way the system works. That happens for any offence that Parliament has ever decided should be open to prosecution. We depend on making good law, rather than worrying about the perverse intentions of campaigners on either side of a political debate about an issue.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I am prepared to accept the anticipatory reviews of my great works of fiction, which, no doubt, will entertain the Minister in due course, but I want to take him back to the question of intention. We have discussed it in previous sittings, but it is not good enough simply to say that the human being must have the requisite intention. As the Minister knows, ''intention'' does not always mean a deliberate plan to do something. It can sometimes mean a reckless disregard for the consequences of one's actions. Therefore, the reckless disregard of a dog owner, within his own property, that his dog might engage in an activity that will bring him into the ambit of the criminal law is something of which the Minister should aware and about which he should be able to assure the public.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

Sure, but the interpretation of intention is not changed by the Bill. It is clear in the generality of the law.

I wish to strengthen my point about unnecessary prosecutions. There is nothing in the Bill, as there is nothing in any legislation that comes before Parliament, to prevent unjustified or unreasonable private prosecutions being brought by individuals or organisations. How could there be? However, the courts are well equipped, as are the CPS and the police, to respond to such prosecutions and to prevent their being used to achieve improper ends. In fact, the courts are expected to impose cost penalties on vexatious litigants.

We have taken an interesting ramble around the context of the clause and the amendment, but I return to the question that I asked earlier. If a dog owner knowingly permits another person to use his dog for

illegal hunting, should not he be guilty of an offence? The amendment should not be accepted, because it is right to ask that question.

Photo of James Gray James Gray Conservative, North Wiltshire

I sometimes wish that I were a lawyer paid by the hour, as are some colleagues, but I am a layman. On reading again the Bill and our amendments to clause 45(3) and (4), I suspect that I drafted the amendments late one night with a cold towel around my head. The word ''knowingly'' in clause 4 probably allays most of my concerns about clause 45, and the amendments may have been drafted without due consideration of it. You will laugh when you hear me say this, Mr. Stevenson, but on this occasion the Minister is correct and the amendments are unnecessary, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of James Gray James Gray Conservative, North Wiltshire

I beg to move amendment No. 364, in

clause 45, page 18, line 26, after 'abandoned', insert

'after appropriate notification to the applicant by the registrar'.

This is a technical and clarifying amendment to ensure that the registrar is not entitled to decide that an application has been abandoned or finally determined unless he lets the applicant know. The role of the registrar and the tribunal is decreasing and, if Labour Members are to be believed and they intend to ban foxhunting outright on Report, the Bill will become the Bill to control the hunting of ferrets, mink and stoats, so the registrar may have little to do. That is an important point because we are discussing whether applications to the registrar will stand. If deer, hare coursing, hare hunting and foxhunting were banned outright, all that would be left for the registrar to do would be to deal with the hunting of ferrets, stoats and mink.

Photo of James Gray James Gray Conservative, North Wiltshire

And wild boar. The role of the registrar will become less and less important as time goes on and the title of the Bill may have to be changed. None the less, if someone has made an application and, however unlikely, it is later thought to have been abandoned, the amendment would require the registrar to make appropriate notification to the applicant before it was allowed to be abandoned. That seems to be a reasonable safeguard for the interests of the applicant.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

As the hon. Gentleman said, the amendment would change the time at which an application is treated as finally determined. At present, it is treated as finally determined when the registrar has made his decision or, if an appeal is made, when the tribunal has determined that appeal. Under the amendment, the time of final determination would be after appropriate notification of the decision to the applicant by the registrar.

I do not think that the change proposed in the amendment is necessary and I cannot see any benefit in it. As soon as the registrar makes a decision on the application, whether it is to grant or to refuse it, he will notify the applicant of the decision. Indeed, details of the way in which he carries out those bureaucratic functions will be set out in regulations. During the

transition period, hunting may continue until an application submitted before the Bill is fully enforced—that will be within a specified period—is fully determined. The definition in clause 45(5) makes it clear that an application will be finally determined only when the registrar has reached his decision and the tribunal has determined any appeal, or the time limit for appealing has been exhausted. It follows that the registrar's decision does not itself lead to immediate prohibition of the hunting in question if there is an appeal, so it is unnecessary to refer to notification to the hunt at that stage. I shall resist the amendment.

Photo of James Gray James Gray Conservative, North Wiltshire

The Minister's oratory is overwhelming and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 ordered to stand part of the Bill.

Clauses 46 and 47 ordered to stand part of the Bill.