| Wild Mammals (Hunting With Dogs) Bill
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Dr. Ian Gibson (Norwich, North): And by its chromosome number. Mr. Garnier: Yes, and by its chromosome number--but chromosome numbers are not normally worn on the outside of the animal, for reasons of fashion or for other reasons. Dr. Gibson: Yet. Mr. Garnier: The hon. Member for Norwich, North appears to have plans in that regard, which he might want to apply to Opposition Members--who knows? Furthermore, the hare has a loping gait or leaping stride when running fast, and the tail is held down when running, so that the black dorsal surface is visible. I understand those differences, and I am sure that you do, too, Mr. O'Hara. I am reasonably certain that the hon. Member for Norwich, North understands them and that some other Committee members may do. The problem is that the dog belonging to the hon. Member for Worcester does not understand them, the dogs that the hon. Member for Reading, West discussed--I think that they were Rottweilers or Dobermans--do not understand them, and the pet dogs that are owned by the wider British public may not understand them. It is no longer possible--if it ever possible--for the Bill's supporters to claim that I am describing a hypothetical or unlikely situation when I describe the legal jeopardy that a dog handler could face if the new clause were accepted. The first problem is that the dog may be sent after what is believed to be a rabbit, but which turns out to be a hare. Secondly, the dog may be sent after a rabbit, but it may be diverted to chasing a hare. Thirdly, the dog may be sent to flush out rabbits in a field where only rabbits are usually found, but flush out a hare. The hon. Member for Worcester and the Bill's supporters have told us time and again that they want the public to know where they stand under the Bill, which was designed to extend the criminal law in a draconian fashion. It is right that the hon. Gentleman should have that ambition, but where do the public stand?
11 amThe proposed defence for hunting now relies on the mens rea--the criminal intent--of the person accused of hunting. That is a big improvement on the Bill as originally drafted and I congratulate the Under-Secretary on his correction of some of the problems in the original Bill. Perhaps we should call him the corrector-general. The legal cogency of the Bill is now better than at its outset. Under the original Bill, we had to consider the mens rea not only of the person who owned or kept the dog, but of the dog. The new clause shows how the balance of justice will pivot on an arbitrary interpretation of a suspect's actions. Two people might be filmed. One might want his dog to catch a hare and one might want his dog to catch a rabbit, but the films might be identical from frame to frame. The burden of proof should lie on the prosecution in a criminal trial, but there is no reference to that in new clause 10. What do the supporters of the Bill propose to do about that? How can an active defence be mounted--surely they are as interested in fair prosecution as in fair defence of an alleged offence--and how can a successful prosecution be mounted if it is impossible for the state of mind of the defendant to be inferred from what he said, did or knew at the time when that is invisible to the court? It is highly unlikely that there would be circumstantial evidence to allow the court to reach a successful conclusion and I gave an example earlier. I am sure that members of the Committee can think of other examples. There will certainly be no giveaway evidence, such as the alleged hunter wearing a red coat or blowing a hunting horn. The supporters of the Bill will have to consider that. Paragraph (b) would allow the hunting of rabbits and rodents on neighbouring land. The Bill has been plagued by poor drafting--that must be generally agreed because the Home Office had to gallop to the rescue of the hon. Member for Worcester--but those who drafted the new clause seem to have given up on the chance to be specific. We are not told whether paragraph (b) includes common land, woodland, park land, neighbouring land such as the huge acreages of national parks and neighbouring counties, or whether it is land defined simply as the next immediate parcel of land with a distinctive possessory title. That is not defined, but I am sure that the drafter of the clause had in mind that a farmer hunting vermin on his own farm could continue in hot pursuit of the vermin to the farm next door. It is all very well for the drafter of the Bill or the hon. Member for Worcester having visions in their minds, but what is important is the words in the Bill and how they are likely to be interpreted by the court. The rule in Pepper v. Hart, with which my hon. Friend the Member for Banbury will be familiar, is not likely to apply if the Bill is enacted. Would the hon. Member for Worcester care to apply his mind to the judgment in that case? Mr. Owen Paterson (North Shropshire): Will my hon. and learned Friend explain the background to that case, which I do not know? Mr. Garnier: I was hoping that the hon. Member for Worcester would do so, but I shall give a brief explanation. Pepper v. Hart was a case that ended up in the Judicial Committee of the House of Lords. It was there decided that a court could refer in certain limited circumstances to Hansard to see what a Minister had said during a Bill's progress through the House of Commons or another place, and to decide on the intended meaning of words in the Act. Previously, it had not been permissible to refer to Hansard in court to established what a Minister intended a provision to mean. If the judge, relying only on the wording of the Act, produced an interpretation that ran contrary to the intentions of the Government who prepared the legislation, that was bad luck. The Act would have to be amended to reflect such a different intention. However, I do not think that Pepper v. Hart would apply in the case of the Bill. Mr. Paterson: Those comments were helpful. In the light of what my hon. and learned Friend has told the Committee and our previous deliberations, how does he think a magistrates court would interpret the word ``hunt'' in the second line of new clause 10? Mr. Garnier: It is my earnest hope that no magistrate will ever have to interpret the word ``hunt'' as set out in the Bill, but I imagine that it would be necessary to marry new clause 3, which will become section 1 of an Act, if the hon. Member for Worcester has his way, with new clause 10 and see what emerges. Another anomaly is apparent concerning new clause 10. It would make it a criminal offence, possibly warranting six months imprisonment, for a farmer's son to take the initiative to hunt rats on his father's farm while his father was away. However, it would not be an offence for the farmer's neighbour, on his own initiative, to hunt the farmer's rats while he hunted his own. If the Bill's promoters intend to placate farmers, who perhaps have a more serious and mature understanding of the need for vermin control than they do, by preserving their right to hunt vermin effectively with dogs, they should explain why farmers' neighbours, but not their friends, families or farm workers, may react to an outbreak of vermin. The Bill's promoters claim to want to let people know where they will stand under the new clause, so they are surely obliged to specify what form of request from a landowner or occupier would be adequate to make a hunting episode legal. Would a general request, without a time limit, be acceptable, so that it would be enough for a landowner to say to someone, ``Come and sort my rat problem out when you have time to spare'', or would such a request have to specify the time and date of each hunt? Under new clause 10(1)(c), would the recollection of the form of words used in a verbal request be admissible as evidence in court? To whom would a request extend? How far could it be diluted or delegated? To illustrate the point, I daresay that the Bill's proponents would regard people who follow fox hunts as engaged in hunting, despite the fact they they do not control dogs, which is the job of the huntsmen. Do the Bill's proponents think that someone who follows a man who hunts rats but does not control dogs, is guilty of hunting if he has not had a specific request to do so from the landowner? Those anomalies occured to me during my reading of new clause 10 overnight. They require the mature consideration of the Committee and, more to the point, that of the hon. Member for Worcester, before the Bill reaches the statute book. The hon. Gentleman has created a huge raft of problems, not only for himself but for the wider public and the administration of justice. New clause 10, although it is the product of old clauce 5(2)(a), is no improvement. I urge the hon. Member for Worcester to think carefully; indeed, I urge him to have a discussion with one of his neighbouring bishops. A number of bishops wrote to The Daily Telegraph today regarding hunting and the hon. Gentleman's proposed ban. Those bishops were: the Bishop of Hereford, the Right Rev. John Oliver, the Bishop of Bath and Wells, the Right Rev. James Thompson, the Bishop of Carlisle, the Right Rev. Ian Harland, the Bishop of St. Edmundsbury and Ipswich, the Right Rev. Richard Lewis, the Bishop of Gloucester, the Right Rev. David Bentley, and the Bishop of Norwich, the Right Rev. Peter Nott. I am sure that the Bishop of Hereford and the Bishop of Gloucester--neither of whom live far from Worcester-- would be available for discussions and would welcome the hon. Gentleman. In their letter, the bishops write that the hon. Gentleman's Bill to ban hunting followed a long debate that
They refer, of course, to the debate on Second Reading and I must agree with them. New clause 10 is one aspect of the Bill that leaves a great deal to be desired. The letter says:
Although the Government is not intending to give the Bill parliamentary time in its own right'' I am sure that the Minister can confirm that from a sedentary position; and I see that he does--
I have no doubt that the hon. Member for Worcester has read the whole of the Scott Henderson inquiry, the evidence it took and the suggestions made in the report. If he will not listen to me--he has not done so in the past, and I do not expect him to change his habits today or on subsequent days when we discuss the Bill--I urge him to listen carefully to the bishops' advice. I especially urge him to bear in mind a call for caution that I can extract from that letter about new clause 10. I hope that I have demonstrated that new clause 10 leaves the Bill in no better shape than it was on 28 November, and certainly in no better shape than it was when we started Committee proceedings--and we all know what has happened to the Bill since then. Indeed, since the selection of new clause 10 on the amendment paper a few days ago, I have done my utmost to do justice to the hon. Gentleman's new clause, to discover how it can sit comfortably with the criminal law and whether it fits with the hopes and fears of the huge number of people who will come to London, among other reasons, to protest about the Bill. I urge the Committee to think very carefully indeed before allowing new clause 10 to form part of any Act of Parliament, especially one as muddled and defective as that proposed by the hon. Member for Worcester.
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| ©Parliamentary copyright 1998 | Prepared 25 February 1998 |
