Hunting Bill [back to previous text]

Mr. Edward Garnier (Harborough): I agree with what my hon. Friend the Member for North Wiltshire said. I would like to move the discussion on to a drier aspect of the effects of clause 1, by trying to unravel it in a comprehensive and rational way. I have five preliminary points. First, clause 1 and the Bill as a whole demonstrate no requirement to prove unnecessary suffering or intention to cause it. A person commits an offence if he hunts a wild mammal with a dog, unless the hunting is either registered or exempt. Secondly, there is no requirement to prove that the individual intended to hunt with dogs to lead to a conviction. Thirdly, the scope of the offence is uncertain. In my view, that is likely to weaken the result. Followers could be caught as criminals, even if they have no control or influence over the dog alleged to be involved in the hunting. That has implications for individuals walking their dogs in the countryside. Fourthly, the criminalisation of followers shows that the Bill is concerned more with the regulation of human conduct than with animal welfare. Fifthly, almost without exception, across the wide range of animal welfare legislation over the past 100 years or so, conduct relating to animals is criticised on three grounds only. The first is if it causes unnecessary suffering or distress; for example, the Agriculture (Miscellaneous Provisions) Act 1968 requires proof of ''unnecessary pain or unnecessary distress''. The second ground is if intention or criminal recklessness is proved. One need only look at the Protection of Badgers Act 1992 and the Wild Mammals (Protection) Act 1996 to see that there is certainty as to the scope of the offence. It is a principle of legal policy that a person should not be penalised except under clear law or, in other words, should not be put in peril upon an ambiguity. This is not a new criticism. I refer again to clause 1. I am amazed by its content and apparent lack of recognition of statutory history. The Burns inquiry, however, was aware of it. It recommended that: ''Consideration should be given to whether any ban could be framed sufficiently clearly to enable people to regulate their conduct. A central issue is whether a Bill would need to have a detailed definition of the prohibited offence and any exceptions or exemptions.'' I suggest that the Bill fulfils none of the three requirements. It does not have a clearly stated purpose. It is enormously important to establish the purpose of any legislation, not least so that the courts can interpret it by reference to purpose. The objective of a measure is the starting point when considering whether it is proportionate. This is all the more important now that the Government have introduced into domestic law the Human Rights Act 1998 and the European convention on human rights. The objective Column Number: 720 must be clearly defined and should find expression in the letter of the law. If the Bill is aimed at animal welfare, that should be stated, as it is in the 1996 Act. I have three further points. First, the Bill is not about animal welfare, but about human behaviour and its regulation. Secondly, there is no requirement in the Bill to show that the accused had a specific intention to hunt, let alone to cause any unnecessary suffering. One can search through the Bill—clause 45 in particular—to see whether we can get any help. An individual who acts, and who believes himself to act, in the best interests of an animal by seeking to relieve unnecessary suffering may be rendered a criminal. Without a clear requirement for the prosecution to prove specific intent, the court may be likely to develop a definition that relies upon degrees of risk and foresight, which would be extremely difficult to apply in the context of hunting. 9.15 am I have concerns about the scope of the offence. Subject to the exceptions relating to registered and exempt hunting in clause 5, a person commits an offence if they hunt a wild mammal with a dog. A number of concerns flow from the way in which clause 1 is drafted and the way in which the Bill is presented. We have already discussed coursing. The Government have decided that hare hunting, stag hunting and deer hunting are to be outlawed without the registrar being able to consider the matter. Mr. Nicholas Soames (Mid-Sussex): Does my hon. and learned Friend agree that the Minister has arbitrarily written off hare coursing and deer hunting without producing any evidence? Mr. Garnier: My hon. Friend is right. The Minister has been asked that question on a number of occasions but he has not condescended to give us an intellectual or rational answer. We have four more sittings in Committee and we may get an hour or so on Report and Third Reading, which will depend on the number of statements on the day on which the Bill returns to the Floor of the House. The Government may think better of the way in which they have handled the question and come up with some answers. I am particularly concerned that the definition of wild mammal in clause 45 is hardly complete. It relates to whether a mammal is wild, and it should not be controversial because it does not address whether a hare is a rodent or a mammal. If a hare is both a mammal and a rodent, as suggested by the concise Oxford dictionary, the hunting of hares would be prohibited unless it were registered hunting. The definition of hunting in clause 45(2) directly hangs from clause 1, which sets up the offence. It provides a non-exhaustive definition, which includes any case in which ''a person engages or participates in the pursuit of a wild mammal, and one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction).'' The definition is crucial because it attempts to define the core component of the offence, namely what ''hunting a wild mammal'' means. People, particularly Column Number: 721 those who are interested in mounting private prosecutions because they are in the habit of following hunts not to take part in the hunting, but to monitor the activities of those who do will look at clause 45 to find out whether an offence is being committed. The word ''includes'' in clause 45 indicates that the definition is not exhaustive and that other Acts could be covered. A definition that is not exhaustive is, by its very nature, lacking in the certainty and clarity that fairness and natural justice demand because it makes the definition practically useless. It is also makes it impossible to predict with any certainty who would be committing a criminal offence and who would not. If we do anything in this Parliament in creating legislation, particularly in the field of criminal law, it is essential that we allow those who currently enjoy hunting to know precisely what it is that they may or must not do if the Bill becomes law. I am concerned about the implications for those searching for quarry or wild mammals. At the moment, searching for a wild mammal is likely to fall within the definition of hunting. I am concerned for dog walkers. The definition of hunting would allow for prosecution when a single dog is in pursuit of a wild mammal. With no specific need to prove an intention to hunt, it will provide scope for dog walkers to be caught by the legislation, which I am sure is not the Government's intention. If hunting does include searching, it could place dog owners with no association with any hunting organisation at risk of prosecution. Dogs naturally search and pursue mammals. For the purpose of criminal liability, a person may be taken to know and intend the natural consequences of his actions. Accordingly, a person taking his dog for a walk in an area that may be inhabited by mammals, such as deer or hares, could be committing a criminal offence and would be liable to prosecution whether the dog chased any mammals or not. Mr. Hugo Swire (East Devon): Is it my hon. and learned Friend's understanding that even if the police showed restraint towards such an incident, the individual walking that dog could be liable to private prosecution? Mr. Garnier: Yes. If the evidence were there, a private individual or even an organisation through one of its officers could lay information at the relevant magistrates court to mount a private prosecution. In some circumstances, the Crown will take over a prosecution and prevent it from proceeding on the grounds of public interest or other specified grounds. My hon. Friend is right. We are dealing with matters that will be dealt with primarily by the summary jurisdiction of the magistrates court. That is the classic place for individuals outside the confines of the Crown Prosecution Service and the police to bring matters of that sort to the court's attention. Bearing in mind the political and emotional controversy that lies behind the subject, it is highly likely that a large number of private prosecutions will be initiated—if not completed—as a result of the Bill coming into effect. Column Number: 722 Those organisations that want hunting to be banned lock, stock and barrel will do their utmost to ensure that the Bill is tested to its limits, and sometimes to destruction so that they can demonstrate to their shareholders—those who have paid money into their coffers to ensure that their campaign is successful—that the shareholders are getting value for money. For every pound put in, they will want their ounce of policy out. The magistrates courts will be kept pretty busy from the outset. I hope that the Director of Public Prosecutions, the Attorney-General, the Home Office or the Department for Environment, Food and Rural Affairs will issue some guidance about the way in which such prosecutions should be handled. After the initial flurry of excitement in the first year or two or three, the number of initiated private prosecutions may well decrease, but the danger is there. The final point I want to make about clause 1 relates to followers. It seems likely—I put it no more strongly than that—that the definition of hunting will cover followers. That can be gleaned from the reference to a person ''participating'' in the pursuit of a wild mammal in clause 45(2)(a), whether or not the dogs used in that pursuit are under that person's control or direction. The fact that the provision would catch followers is also indicated by clause 2(2), which refers to hunting by an individual being registered if he participates in hunting by a group where his participation in the hunting is recorded. In some ways, that reference adds nothing to the definition of hunting, but it is likely that the provision is intended to ensure that those holding a group registration should keep a record of all who follow a hunt on a particular day. We ought to be aware of that area of concern. An individual may be convicted of an offence of hunting with dogs, even though he has no control over or responsibility for the dogs used in the hunt. As the conduct of followers has no influence on whether the hounds catch a mammal, the prosecution of those individuals can have nothing to do with concerns about animal welfare, because their conduct would have no influence on the welfare of any animal. As I said at the outset of my remarks, the objective of the Bill—at least in that provision—is to penalise human conduct, not to promote animal welfare. The new schedule, which sets out what I loosely call the MOD-model licence—my name is attached to new schedule 2—is the best of a bad job. The idea contained in new schedule 2 is the best that we can hope for, given where we are. I hope that the Government, if not those of their supporters who want a total ban, will at least carefully consider new schedule 2, which would provide for licences that are very similar to others that the Government issue, as my hon. Friend the Member for North Wiltshire said. At the beginning of the Bill is a legally imperfect clause that will lead to the clogging of magistrates courts with the sort of private prosecutions to which my hon. Friend the Member for East Devon (Mr. Swire) referred, and to a genuine sense of Column Number: 723 misunderstanding and lack of comprehension among people who hunt about what they may or may not do, when and if the Bill becomes law.

©Parliamentary copyright 2003	Prepared 4 February 2003