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Standing Committee F
Thursday 16 January 2003
(Afternoon)
[Mrs. Marion Roe in the Chair]
Clause 8
Tests for registration: utility and least suffering
2.30 pm
Mr. James Gray (North Wiltshire): I beg to move amendment No. 16, in
clause 8, page 3, line 12, leave out 'significant'.
The Chairman: With this it will be convenient to take amendment No. 17, in
clause 8, page 3, line 13, leave out 'serious'.
Mr. Gray: I very much hope that my remarks on amendment No. 16 will carry a great deal of weight with my Conservative colleagues. They were so concerned about the power of the argument that I was about to advance that they left. I hope that they will be able to rejoin us shortly.
Dr. Alan Whitehead (Southampton, Test): Absent friends.
Mr. Gray: Absent friends, as the hon. Gentleman correctly says.
Undeterred by the Committee's reluctance thus far to widen the definition of utility or to change the way in which the definitions of utility and cruelty are interlinked, we shall shortly move to the absolutely central group of our amendments, which seek to widen the definition of utility. We tabled the amendments partly because we believe that it is terribly important that the registrar and the tribunal should have entirely objective ways of judging the applications that come before them. The registrar's decisions must not be based on opinion. He must have very clear rules laid out so that he can judge which applications are allowable and which are not.
In our view, that is the difficulty with the drafting; the difficulty is still in the rubric of the clause that the two amendments seek to change. If we leave in the words ''significant'' in line 12 and ''serious'' in line 13, we leave open to interpretation by the registrar words that should be extremely carefully laid down and defined. Both words can be defined in a variety of ways and are liable to interpretation. For example, the definition of significant from ''Collins English Dictionary'' is ''important . . . or momentous'' or
''of or relating to a difference between a result derived from a hypothesis and its observed value that is too large to be attributed to chance''.
''Significant'' is too large to be attributed to chance.
However, the utility of pest control using dogs is not a matter that is capable of simple proof. It would be extraordinarily difficult to prove even that the utility of using dogs is too large to be attributed to chance. Most of the demonstrations of utility that we
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shall discuss could be attributable to chance. It is very difficult to prove cause and effect in matters such as habitat control and species management. In later groups of amendments we shall discuss the extensions to the definition of utility that we propose.
The Minister for Rural Affairs (Alun Michael): The hon. Gentleman read out a dictionary definition, but we must apply terminology in the way that it is accepted and commonly used in English law. The two interpretations that he read out were very different. It might be helpful if he were to indicate which he is using.
Mr. Gray: There is not actually that much difference. One was ''important . . . or momentous'' and the other was about something having an
''observed value that is too large to be attributed to chance''.
The word ''significant'' means extremely large, gigantic, extraordinarily important, overwhelmingly important. Those rough definitions would suffice.
The Minister says that it is important that we use definitions that are recognised in English law. I hope that he will give me examples, and use case law. Doubtless officials, on hearing the challenge, will have to rush off and look up the case law. As he wants us to use words such as ''significant'' and ''serious'', which are defined clearly in English law, I need to know from him in his reply in which animal welfare or cruelty cases the word ''significantly'' or ''serious'' has been clearly defined. If he can do so and advance them this afternoon, under Pepper v. Hart, that will then become part of English law. It will become important that we know precisely the meaning of ''significant'' and/or ''serious''.
If the Minister wants to be so helpful to the registrar by giving us those useful examples, why has he not put a definition of ''significantly'' or ''serious'' in the Bill? It would be logical and sensible to say to the registrar, ''If you want to judge what is significant or serious, here is our definition of what is significant and what is serious. Use that and don't use your own judgment.'' The Minister has not chosen to do that. He may come back with a precise definition under English law. We would welcome that. Under Pepper v. Hart that will then itself become part of English law. He has not chosen to do so.
The truth of the matter is that it is difficult to tell the precise way in which hunting using dogs fulfils utility definitions. Lord Burns, who did so much extensive research into the management of populations of the quarry species—fox, deer, mink, and hares—and the various methods of control came to no firm conclusion about the best way to achieve species management. We should advance the notion that species management is one of the most important utilities that hunting with dogs can bring about. Lord Burns and the scientists at Portcullis house came to no sensible conclusion about it.
Given that the scientists have not agreed, the civil servants have not agreed and the lawyers have not necessarily agreed—although I stand to be corrected on that if the Minister comes back with examples from previous case law—and that we as legislators have not agreed what is significant, how on earth can the
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applicant do so? Under the clause, the applicant is required to demonstrate that there are significant benefits—I shall talk about serious damage in a moment—but how can he prove significant benefits? Does he come along and quote extensive tracts from learned reports by such people as Professor Macdonald of the wildlife conservation unit of the department of zoology at Oxford university, or by the Game Conservancy Trust?
Perhaps the applicant comes along and says, ''Here are the extensive scientific treatises that demonstrate significant benefits''. If he does, the rich campaigning organisations such as the Royal Society for the Prevention of Cruelty to Animals and the International Fund for Animal Welfare would simultaneously bombard the registrar with their huge scientific treatises, produced by Professor Stephen Harris from Bristol university and others. How is the registrar to decide whether Professor Harris or Professor Macdonald is right? We are giving the registrar an unacceptably difficult task. He will have to judge between two learned bodies of scientific evidence what is significant. That should be a job for us as legislators. It should be a job for the Minister. He is refusing to do it.
The only people capable of judging what is or is not significant should be us and the land managers, although we heard in the previous debate that the Minister does not believe that the land manager's opinion is necessarily overwhelmingly important. The land manager or the farmer is the one who can judge whether significant benefits are gained by using dogs to get rid of pests on his farm, but he is not allowed to do so.
The judgment required by the registrar is predicated on an unknowable future situation. As the Bill is drafted, the assessment of hunting's ability to contribute significantly relies on the idea that the quarry species would otherwise cause serious damage; in the future, not the past. We are saying to people, ''You can apply for your registration to hunt using hounds if you believe that a significant benefit will be caused in the future and that there is a likelihood of serious damage in the future.'' The applicant will have to prove something that, by definition, is subjective and difficult to prove, and is dependent on balancing two bodies of scientific evidence. He will have to prove in advance that he is certain that it will give significant benefit and prevent serious damage. That will be virtually impossible for any land manager or applicant to achieve. There is thus an unachievable hurdle in the way of the applicant.
Rob Marris (Wolverhampton, South-West): In terms of the amendment and achieving the unachievable, as the hon. Gentleman terms it, has he taken into account clauses 15 and 26 and the regulations that might be made to aid registrars?
Mr. Gray: I have to admit that, without scrabbling through the Bill, I am not certain about clauses 15 and 26. I am certain that I have considered them and that the people who advise me will have done the same, but perhaps the hon. Gentleman will forgive me if I do not
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give a conclusive answer right now. Rather than quoting numbers, perhaps he will tell me what his point is. How do clauses 15 and 26 affect the question of ''significant'' and ''serious''?
Rob Marris: I will not read the clauses out. Clause 15 deals with handling. Under the clause, regulations can be made to enable the registrar to request information. Clause 26 also deals with the handling of applications. Under the clause, the Secretary of State can make regulations enabling the registrar to request the provision of information. That would assist the registrar in making a decision and achieving the unachievable.
Mr. Gray: I am grateful to the hon. Gentleman for informing us about that and for making it plain that I have not explained myself sufficiently clearly; he obviously has not followed my point. He will forgive me if I was not clear enough. I will try again. The Bill requires the applicant to prove beyond all reasonable doubt in a court of law—the matter may well go to a court of law—that he wishes to use dogs for the purposes of pest control because there are significant benefits to be gained from that in the future and serious damage is being done in relation to the list of utilities. He is not allowed to talk about the past and say, ''I have lost 100 hens over the past five years and therefore I need to do this.'' He needs to demonstrate that there will be a significant benefit in the future and that there is a risk of serious damage. The onus of proof is on him. He has to prove something that is not provable. That is why we seek to remove the two words, which are undefined and subjective. The land manager is being asked to do something extremely difficult. At the very least, there could be extensive court cases, with people trying to work out a precise definition of ''serious'' and ''significant'' and whether or not it is reasonable to expect the applicant to prove those things in advance.
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