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Standing Committee F
Tuesday 21 January 2003
(Afternoon)
[Part II]
[Mrs. Marion Roe in the Chair]
[Continuation from column 394]
5.50 pm
On resuming—
Paddy Tipping (Sherwood): Surprisingly, there has been some agreement among the parties during the stand part debate. The hon. Member for North Wiltshire told us that the clause is the cornerstone of the Bill. Committee members recognise that the Bill disappears without clause 8. As a result, we have spent a great deal of time considering it. I was interested in the hon. Gentleman's point that he supports in principle the notion of a spectrum of cruelty and utility, but not in the form outlined in the Bill.
During the debate, three amendments have been passed: one on birds, the amendment of my hon. Friend the Member for Southampton, Test (Dr. Whitehead) on pest control, and that of my hon. Friend the Member for Wolverhampton, South-West, which was agreed earlier this afternoon. The latter switches the argument around and will change the burden of proof. As a result, we have an amended clause 8 that is slightly different from the one that was originally put before us.
Mr. Gray: The hon. Gentleman enables me to put right something that I inadvertently missed during the debate on the amendment of the hon. Member for Wolverhampton, South-West. It has been pointed out to me that I should have spoken against the amendment because it toughens up the utility test. I did not spot that or speak against it; nevertheless, we are opposed to it.
Paddy Tipping: The hon. Gentleman helpfully leads me on, because I also am of the opinion that the amendment toughens up the test and makes a case harder to prove. I was conscious that the hon. Member for Mid-Worcestershire said—I believe that I heard him correctly—that his impression of the effect of clause 8 was that foxhunting as we know it would, by and large, disappear.
The Committee must discuss what clause 8 actually means, because one of the criticisms of the Bill and this clause is that, in a sense, Parliament is sub-contracting the decisions. We are asking a body that is yet to be set up and a registrar who is yet to be appointed to make decisions that Parliament has voted on many times over many years. For my sake and for the sake of the Committee, the House and interest groups, we need clarity about what the clause actually means and what will be left to the registrar to decide.
I am with the hon. Member for North Wiltshire. My reading of the clause is that it will mean an end to local foxhunting—the sport of foxhunting as we know
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it. What advice has my right hon. Friend the Minister received? He has worked diligently and hard on the Bill and it is a good, subtle and sophisticated Bill, but what does it mean? We must have that discussion, as my hon. Friend the Member for West Ham said. We need certainty.
My position is clear: I have always voted against the sport of foxhunting. However, I want to know what we are voting for. If I am not clear about that now in Committee I want an opportunity to clarify the matter when the Bill returns to the House on Report. The worst thing that we could do as a Parliament would be to let legislation go from our House to the other place without a clear understanding of what we have shaped and voted for.
Mr. Garnier: The hon. Member for West Ham enlivened our discussion on whether clause 8 should stand part by unpicking the real agenda. I do not blame him for doing so and I am delighted that he did. I suspect that in some senses he and I are rather like the alliance between Enoch Powell and Michael Foot 25 years ago when the House was discussing reform of the House of Lords. That is a little unfair on him, because he does not look at all like Enoch Powell, and I do not suppose that I look like Michael Foot. I daresay that he and I have equally opposed views on reform of the House of Lords and we would have done so then, and that we will on 4 February when the Bill is debated in the House and moved towards a vote.
Mr. Banks: Does the hon. and learned Gentleman want to go there?
Mr. Garnier: I will go anywhere—for God's sake, get me out of here. I assure the hon. Gentleman that, having listened to these debates since 1992, retirement to the House of Lords would be sweet relief. For the moment, I have to do my duty here in Committee Room 14.
The hon. Gentleman implied and the hon. Member for Sherwood (Paddy Tipping) said expressly that Report stage will be more interesting because the Government business managers will not be able to control the way in which matters are voted on as they are able to do with a smallish gathering such as this. I look forward to the debate on the Floor of the House, where all sorts of Members, who may or may not have listened to the arguments, will vote. I suspect that those who do not like hunting—which I believe the record will show is 100 per cent. of Labour Members—will be pleased to see a total ban Bill coming into law. Indeed, the hon. Member for Worcester (Mr. Foster) made his name trying to introduce a Bill to that purpose.
The hon. Member for West Ham touched on the fact that the tests in clause 8 are wholly subjective. They are the result of a bodge that will not work. We cannot have a Bill that brings into law subjective tests that then have to be adjudicated by a court, which is exactly what the registrar hearing will be, unless they can be subject to objective proof, which they cannot.
So, the tension will persist between the total banners and those, like me, who want hunting to continue. If the Bill is enacted with clause 8 as it is drafted at present, subject to the amendment of the
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hon. Member for Wolverhampton, South-West, those who want a total ban will not be satisfied. They will therefore push until they get what they want; that is what happens in politics and I am happy to play that game too. I will stick my heels in for as long as possible before I am carted off to somewhere else—or out completely.
I want us to understand the reality of what we are doing. If anyone in this Committee thinks that we are having a genuine discussion about whether clause 8 should stand part, we are fooling ourselves. I do not want it in for the reasons that I have expressed endlessly since 1992 and the hon. Member for West Ham and his friends do not want it in for the opposite reasons. Whether the Foot-Powell arrangement will help both or neither of us we have yet to see, but we will find out when the Bill returns to the Floor of House.
6 pm
Rob Marris: The hon. and learned Gentleman is legally qualified. He talks about a subjective test in clause 8. He will recall that section 1 of the Theft Act 1968 states that theft is the dishonest appropriation of
''property belonging to another with the intention to permanently deprive''.
Legally speaking, the provision mixes the subjective and the objective. It refers, for example, to the intention to permanently deprive. It could be said to be subjective in the sense that the judge who hears the case must decide whether the defendant had such an intention. Is that relationship between the subjective and the objective any different from what we have in the clause?
Mr. Garnier: The hon. Gentleman perfectly accurately tells us what section 1 of the Theft Act says. I sat as a Crown court recorder 20-odd days ago, and I frequently have to advise juries about what, in legal Latin, is called mens rea, or intent. Various other aspects of criminal law require jurors to consider what was going through a person's mind at a particular time. They must do that largely on the basis of what the person said, did or knew at that time. That is largely an inferential exercise; it is not as easy as making findings of fact about where a person was or what colour a vehicle was. Those are easy questions, with yes or no answers. Intention and the state of someone's mind are much more difficult to explore.
In the clause, we move to a much higher level of difficulty. One cannot reach a conclusion about what is cruel simply by examining one person's mind; one may need to examine a whole culture to find out what is acceptable. There is also the question of what is acceptable now as against what might be acceptable in a year's time, because social mores change. In my view—people are perfectly entitled to disagree—courts of law are not good at reaching conclusions about matters of historical or moral controversy. To take some easy examples, a court is not a sensible place to discuss and reach a conclusion about whether abortion is a good thing or whether we should approve of homosexuality. It is not for the courts to reach such
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conclusions; it is for you and me, Mrs. Roe, to form our own opinions in our private lives and discussions.
Rob Marris: The hon. and learned Gentleman may have to decide such things or to advise a jury on them when he is moonlighting, but what about issues of obscenity under the Obscene Publications Act 1959? In that respect, the legal process must reach a conclusion.
Mr. Garnier: We can swap examples and demonstrate what clever lawyers we are because we know all about such cases, but I am—[Interruption.] I wish that I could afford as much as champagne as the hon. Member for West Ham seems to consume.
Mr. Banks: Give up the women and the gambling and you might. [Laughter.]
Mr. Garnier: Perhaps the hon. Gentleman is mistaking me for a Liverpool footballer, or for himself. Who knows?
The hon. Member for Wolverhampton, South-West and I can swap examples from one bit of ''Archbold'' or another, but that does not really help us. My point is that the courts are not good at reaching conclusions about matters of moral or historical controversy. Let me give the hon. Gentleman an example from the area of law in which I practise; defamation. When a court discusses matters of fair comment, it does not say that it must agree with the comments made by the defendant publisher, book writer, journalist or individual. It asks, ''Is it a comment? Is it a fair one? Is it one that a reasonable man might honestly make?'' That is all that it does. Things may be said that are hurtful or disagreeable, but as long they are in the form of a comment, a court will simply confirm a person's right to hold those opinions and to express them.
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