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The Chairman: We now move to amendment No. 240. Mr. Gray: On a point of order, Mr. Stevenson. I cannot spot amendment No. 240. The Chairman: I have it in my amendment paper in the middle of page 350. Has the hon. Gentleman identified the amendment? Amendment proposed: No. 240, in
Question put, That the amendment be made:— The Committee divided: Ayes 14, Noes 7.
Division No. 18]
AYES
NOES
Mr. Gray: I beg to move amendment No. 34, in
'can show that the applicant or applicants fail to satisfy the tests specified in section 8 he may.'.
Column Number: 623 The amendment may seem somewhat technical and legalistic, but it is actually extraordinarily important. It seeks to shift the burden of proof from the applicant to the registrar. At present, it is necessary for the applicant to demonstrate that he should be registered. If the amendment were passed, the registrar would need to prove that there was some reason why the applicant should not be registered. The reason for the amendment is that the legislation implies that hunting is not necessarily cruel. The mere fact that it can be registered demonstrates that there is at least a theoretical possibility that it is not cruel. If that is the case, it seems perfectly obvious that it should not be a criminal offence. If the Minister has admitted in the Bill that hunting may, under some circumstances, have some utility and therefore is not cruel, it should not be a criminal offence. The Minister is right to say that cruelty cannot be licensed. It would be illogical to do so, particularly as existing animal welfare legislation defines cruelty as the intentional infliction of unnecessary suffering. Plainly, that cannot be licensed. However, given that hunting is implicitly legalised by the Bill—the Government say that under certain circumstances and if the registrar is satisfied, hunting with dogs will be legal—the burden of proof should be reversed. The legislation is not criminalising hunting but merely setting the criteria by which it can be conducted. I hope that the Minister and the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Scunthorpe (Mr. Morley), will accept that that is the case. As such, the registrar should permit hunting, except where a convincing case can be made against such permission. In other words, logically, there should be a presumption in favour of registration rather than against it. The burden of proof in the Bill is yet another indicator that the real intention is not to regulate hunting but to ban it. In other words, it has more to do with human activities than animal welfare principles. The Minister has often said that the Bill is concerned with animal welfare rather than human activity. It is therefore only reasonable to presume that a hunt will be registered unless the registrar and the tribunal can demonstrate that there is a good reason why it should not be allowed, which is a sound principle of all English law.
9.15 amThe applicant for registration must prove that what they want to do is necessary—thereby avoiding the traditional definition of cruelty—in that it is likely to make a significant contribution to the prevention or reduction of certain types of damage. That is the opposite of what may be expected in a tolerant and liberal society in which conduct should be lawful unless there is a very good reason to make it unlawful. That is the basis of our society; most things that one does are lawful, unless there are good reasons for them to be unlawful. Nowhere in the Bill, the explanatory notes or anything that the Minister has said has it been made clear what would be a good reason for criminalising Column Number: 624 unregistered hunting with dogs. A better approach would be a presumption in favour of registration unless there is a good reason why someone should not be registered to hunt. The reversal of the burden of proof is contrary to the principle of good law because of the nature of evidential material and the imbalance of means between, for example, the individual applicant—this takes us back to Tuesday's discussion—and a large, prescribed animal welfare body, which will be in receipt of large sums of money from Her Majesty's Government.The reversal of the burden of proof in the Bill will make registration even harder for poor applicants. One of our Welsh colleagues said that such applicants will seek to become registered and fail to do so because they have low resources, little time and little understanding of the law, and they may be up against large, powerful and well-funded animal welfare organisations, which are paid a grant by Her Majesty's Government. The fact that the balance of proof is the wrong way round will make it doubly difficult for an individual to make their case. It would be a great deal more just if the burden of proof were on the registrar to demonstrate that there was good reason why an applicant should not receive their registration. The registrar would still decide whether cruelty was greater than utility or vice versa, so the Bill's outcome would be precisely the same. The amendment would uphold natural justice by reversing the balance of proof to make it necessary for the registrar to demonstrate why the applicant should not be granted registration rather than the other way round. That is self-evident and, because of the way in which the Bill is drafted, it would be the most logical approach to the registration procedure. Rob Marris (Wolverhampton, South-West): I urge my hon. Friends to vote against the amendment. It does not incorporate what I would regard under the jurisprudence of England and Wales as ''a sound principle of English law'', as the hon. Member for North Wiltshire (Mr. Gray) put it. An applicant who applies to an employment tribunal has to make their case on the balance of probabilities, and the same is true of applications to social security appeal tribunals and to traffic commissioners for licences to operate vehicles. Winding back to an earlier part of the hon. Gentleman's speech, the amendment is based on a fundamental misunderstanding of clause 8. He said that one has to show that hunting has some utility and is therefore not cruel, which is not how clause 8 will operate. Mr. Garnier: The points made by the hon. Member for Wolverhampton, South-West (Rob Marris) are worth considering, but I shall not detain the Committee by swapping stories about employment tribunals and social security tribunals because I am not sure that they are relevant to our discussions. We are dealing with the consideration by the registrar of written material from both the applicant and the Government-paid respondents to the application. Given that we are dealing with such an Column Number: 625 imbalance, and a paper exercise, it seems fair and just that, irrespective of the activities in other tribunals, the burden of proof, in so far as it is relevant to the whole exercise, should be placed on those who seek to disturb the status quo.The respondent to the licence application—albeit that the respondent is the second person in the chain and that the applicant is doing the positive thing by asking for a licence—is clearly the prosecutor, who seeks to deny the liberty of an individual or a group to exercise what is currently a lawful activity and a right. The respondent should be put to the test of persuading the registrar that the licence should not be granted. One only has to look at the current law on fishing licences and game licences, which are handed out almost as a matter of course. There is no requirement for an applicant for a fishing licence or a game licence to satisfy the person behind the post office counter that a burden of proof has been discharged. For those simple reasons, the amendment in the name of my hon. Friend the Member for North Wiltshire is worth not only considering but passing into law. Alun Michael: I am surprised that, on hearing the brief, clear contribution from my hon. Friend the Member for Wolverhampton, South-West, the Opposition did not seek to withdraw the amendment. The hon. Member for North Wiltshire continually makes arbitrary and perverse statements about what he thinks the Government are doing; we could spend a long time in Committee seeking to untangle his thoughts. The Bill's target is clearly cruelty, which is an outcome of human activity. I am surprised by his talk of criminalising activities, because Parliament decides on the requirements of the law, by which law-abiding people abide. The hon. and learned Member for Harborough (Mr. Garnier) talked about an application as though it were a prosecution or a denial of a liberty or a right. If Parliament agrees to the propositions in the Bill, people will be required to come forward and show that what they propose to do is not cruel. They need to show that such activities satisfy the test of utility, are necessary and do not involve unnecessary suffering. Clause 17(6), which amendment No. 34 seeks to amend, could not be more clear and straightforward. Where the registrar is not satisfied that the hunting proposed in an application would pass the tests of cruelty and least suffering set out in clause 8, they must refuse the application. The amendment would turn around that presumption of proof and place it on the registrar, which would fundamentally undermine the Bill's purpose: to prohibit hunting with dogs unless there is no more humane method of dealing with particular wild animals. That is set out in clause 1, which creates the offence of hunting a wild mammal with a dog unless such hunting is registered or exempt. If a person wants to register to hunt, the onus must be on them to prove to the registrar that the proposed activity should be registered.
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