Hunting Bill [back to previous text]

Rob Marris: That overlooks malice. Mr. Garnier: It does not overlook malice, because malice is an integral part of the test that the commentator must deal with. It is for the claimant—the person who feels that he has been aggrieved by the comment—to demonstrate that the defendant, the publisher or the commentator was actuated by express malice. We then return to what was said, done or known by the defendant. The hon. Gentleman will be familiar with the case of Horrocks v. Lowe, a 1974 appeal case; I shall not give him the page reference, as I am sure that he knows it already. Lord Diplock, in giving the lead judgment in that case, said that courts should be extremely slow to reach a finding of malice, because that goes to the root of the destruction of freedom of speech. That is all a great distance away from clause 8 of the Bill. However, I am seeking to demonstrate that the Bill imports into this controversy an unnecessary difficulty, with which the registrar will have to grapple. It will not make our life easier, nor that of the registrar, when one considers the huge emotions that are built up behind the issue. If we are honest, the real debate, camouflaged with all this guff about the two tests, is about which side of the argument should hold sway; whether hunting should be banned altogether, or whether, as I would prefer, it should be allowed to continue. Column Number: 5 At present, the Bill brings those two arguments together in clause 8 in this bogus, artificial and unsatisfactory way. I predict that, by virtue of its unsatisfactory nature, if clause 8 is passed into law in this form, it will break down in due course. People such as the hon. Member for West Ham will then say, ''I told you so, we should have had a total ban to start with.'' At that point I, were I so inclined, might say, ''I told you so, we should have left the damn thing alone from the very start.'' We should have left it to the Independent Supervisory Authority for Hunting to deal with the issue, along with the sporting bodies who currently govern—and govern very well—the activities of those who hunt. The hon. Member for West Ham, and many other Government members, believe that hunting is cruel, and cannot accept in their heart of hearts that cruelty can be licensed. I suspect that they are not interested in a dispassionate examination of the utility test because they will never get past the other part of the test, which concerns cruelty. In their minds, hunting is cruel and should not be licensed, and that is the end of the matter. I am concerned that we cannot consider clause 8 without looking at what the registrar will have to do, and how the registrar system is set up in the clauses immediately following clause 8. That is inevitable because of the way in which our procedures are designed. It is necessary to examine clauses 9 to 20 to gain some understanding of what clause 8 is about and the way in which it will be applied. As I said in my opening remarks and in my discussion with the hon. Member for Wolverhampton, South-West, I believe that the registrar and tribunal system are a wholly unsatisfactory and unworkable way of dealing with the two tests. I suspect that, when the Bill was drafted, it was known that it would lead to trouble. However, it was probably thought that that did not really matter, because if the unsatisfactory nature of clause 8 and the way in which it was applied were to lead to a further examination of the Bill—either in this Parliament or a later one—the likelihood would be that that would result in a total ban. Thus the overall purpose of the ''banners'' will have been achieved. The Government, however, can wash their hands of the matter, saying that the total ban was not their fault, and that they had done their best. That is inevitable and predictable. The hon. Member for West Ham also thinks that it is inevitable and predictable. In making their views known on clause 8, only he and the hon. Member for Sherwood have so far supported that view of inevitability. If there are others who agree with them, we shall hear from them now, or on Report in larger numbers on the Floor of the House. Lembit Öpik: As my fellow Middle Way Group member the hon. Member for Mid-Worcestershire has already said, we support the principle of clause 8. It is sensible, and all the way through the debate we have sought to credit the Minister for seeking to put principles at the heart of the legislation. Our issues, as my hon. Friend pointed out, are ones of content. We feel that the clause is over-restrictive. Column Number: 6 Rather than repeating what my hon. Friend said, I want to add two other considerations. One point that has come up throughout the debate is my concern that the Minister seeks to apply the considerations of utility and suffering sequentially, instead of in a comparative way. I see more clearly now that there is a discreet difference of view on that matter. I feel that cruelty is determined on the basis of comparing the utility with the suffering. To his credit, the Minister has been clear in saying that the first test is one of utility and the second one of suffering. To make the legislation work effectively, it is unavoidable that any registrar will have to make a comparison between utility and suffering. That is what we do in matters of animal welfare all the time. For example, a vet would seek to consider the best course of action in addressing the condition of a sick animal by considering how much extra suffering would be caused in dealing with the wound. It might be more humane to put the animal down. A vet regularly makes the comparison between suffering and benefit when addressing the condition of an animal. Alun Michael: No, the registrar and the tribunal cannot bring the two tests together in the way that the hon. Gentleman suggests. They have to deal with them sequentially; that is what the Bill requires. I suggest to the hon. Gentleman that if he took the example of the vet and unpacked it, he would see that the vet starts off by diagnosing what is wrong with the animal. How he cures it and deals with the problem is the utility of the treatment. He would then look at the impact of the treatment, which will cause some suffering. A lot of medical treatment does cause suffering, whether it is carried out on an animal or a human being. It might be mitigated by anaesthetic, but it might not. Treatment may lead to a degree of suffering that is cruel. That may be because the suffering is not necessary; the repair of the limb, or whatever it may be, is not sufficiently important for the amount of suffering involved. There may be another way, such as amputation, a splint or plaster. One has to deal with the considerations separately to be logical. I would accept that, in many circumstances, people consider cruelty in a vague sort of way and muddle together the two concerns, but the Bill is logical. The tests for cruelty could be applied in a variety of other circumstances. Lembit Öpik: I understand the Minister's adherence to the sequential nature of the application of those two considerations. My concern is that in reality—I do not want to spend time on examples—such considerations cannot be looked at in total isolation. Mr. Luff: Will my hon. Friend invite the Minister to flesh out the last part of his remarks during his intervention? He seemed to suggest that the tests should be applied in other circumstances. I wondered what circumstances he had in mind. Lembit Öpik: The example was from another circumstance. My example is somewhat similar. Not so long ago, I owned a cat, which was run over. The cat was seriously ill. We took it to the vet, who said that he could probably save its life, but that his judgment was that the benefit of continuing its life was Column Number: 7 more than exceeded by the suffering that it would experience during the operation and the pain that it would suffer for the rest of its life. Having to judge between the utility of trading its life and the associated suffering, I decided that we should put the cat down. Indeed, that is what happened. 6.15 pm That veterinary example will unavoidably present itself to the registrar. I can understand why the Minister feels that that is not necessarily the case. It may be more appropriate to deal with it on Report or Third Reading. I remain unconvinced that the sequential approach of clause 8 is the best way to proceed. That said, however, it is too late to table amendments to change that sequential ordering. Secondly, the list of utilities is unreasonably limited. We have had a long discussion about it, but I remain concerned that rather than listing genuine utilities we have listed the utilities that people would like to have. That is contradictory, because many people on the pro-ban side have repeatedly said that those who hunt with dogs do it because they enjoy it; that is a way of saying that they derive utility from it. It was certainly my view from the three-day hearings in September 2002 that there was at least implicit acceptance that recreational considerations were a utility. My concern is that simply eliminating that and other considerations about general wildlife management, infringes on the list of genuine utilities that should be taken into consideration. The point has been made, however, and I do not need to say more now. I conclude by concurring with the hon. Member for Mid-Worcestershire that I do not want those principles to be abandoned in the Bill. Even with its weaknesses and deficiencies, it is laudable that the Bill should have such principles at its centre. To vote against it would somehow contradict the arguments that the Middle Way Group has put forward. I shall agnostically abstain, for exactly those reasons that the hon. Gentleman outlined, in the hope that the amendments can be improved in another place. Mr. Gray: If indeed the amendments are to be replaced in another place, they can be brought back afresh. If we believe that it is a bad, wicked clause, amendments can easily be tabled in the Lords. Leaving the Bill as it is risks it becoming law in its current form.

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