HC Deb 07 April 1971 vol 815 cc602-14

11.15 p.m.

The Attorney-General

I beg to move Amendment No. 5, in page 6, line 22, leave out 'ditching' and insert: 'the construction of any obstacle designed to designed to prevent animals from straying'. Instead of fencing being defined as including ditching, it is to be defined as including the construction of any obstacle designed to prevent animals from straying. I think this would be better for the provisions of the Bill.

References to "fencing" appear in Clauses 5(6) and 8(2). Clause 5(6) is concerned with the defence an owner of animals can raise when sued by a neighbour for damages caused by the animals trespassing. It seems logical that for this purpose fencing should include the construction of any obstacle designed to prevent animals from straying. As fencing obligations are normally, in leases, conveyances and so on, expressed in terms of putting up or maintaining walls or fences, the revised definition will probably make very little difference.

Clause 8 is concerned with liability for animals straying on a highway, and has the effect that the owner is liable for any negligence in allowing them to stray. Subsection (2) ensures that no liability shall fall on a person who grazes an animal on unfenced land in open parts of the country. The relevant parts of the country are areas where fencing is not customary. It is intended that the subsection should cover all those parts of the country where it is not customary to erect or construct obstacles designed to enclose fields so that animals will not stray from them.

I again remind the House that we are dealing with the whole of England and Wales in the Bill. In some parts of the country, like the Fens, ditches are dug for this purpose, and if they are deep and wide enough they are very effective. But in others, like the Yorkshire Moors, fields are commonly surrounded by drainage ditches which are not intended for the purpose of keeping animals in and would not be effective to do so. Therefore, the definition of fencing as including ditching produces the wrong result in subsection (2), and to achieve the right result, it is appropriate to generalise the meaning of fencing to cover the construction of any obstacles which are intended to keep animals enclosed. For this reason we propose to extend the words to those of the Amendment as being more consistent with the purposes of the Clause.

Mr. S. C. Silkin (Dulwich)

I should like to ask the Attorney-General one or two questions about the proposed change.

I can understand the objection to the original definition, which says that "'fencing' includes ditching", because I should have thought that manifestly it does not. But I have read carefully what the right hon. Member for Thirsk and Malton (Mr. Turton) and my hon. Friend the Member for Enfield, East (Mr. Mackie) said in Committee. One of them said that ditches are used as a form of fencing and the other that they are not. It obviously depends on what part of the country one is speaking about.

But now that "ditching" is to be removed from the definition I am not clear whether the expression the construction of any obstacle is apt to include the digging of a ditch. I assume that the right hon. and learned Gentleman intends it to include that; that he intends the definition to read as though it were "fencing includes ditching and the construction of any other obstacle". But I wonder whether it has that result. It would surprise me if it did. Perhaps he could help us on that.

Mr. Turton

I express my gratitude to my right hon. and learned Friend the Attorney-General for the Amendments. He probably did not realise that the livestock in the North of England are more athletic than those in other parts of the country. For that reason, more than a ditch is needed. This point was made by the hon. Member for Colne Valley (Mr. David Clark). Both of us know from our experience of the ways of Yorkshire sheep that more than a ditch is necessary to prevent animals from straying.

The Attorney-General

With leave, may I say, speaking to my right hon. Friend the Member for Thirsk and Malton (Mr. Turton), that it is not only the livestock in the North which are athletic.

I think that the construction of the Amendment is apt. It refers to any obstacle designed to prevent animals from straying". If a person erects an obstacle with that purpose in view, it comes within "fencing". I can safely recommend the Amendment to the House.

Amendment agreed to.

Order for Third Reading read.—[Queen's consent, on behalf of the Crown, signified]

Motion made, and Question proposed, That the Bill be now read the Third time.

11.21 p.m.

Mr. Arthur Probert (Aberdare)

I have spoken on this subject so many times over a period of years that if I were to speak for any time I should be repeating myself.

The right hon. Member for Thirsk and Mahon (Mr. Turton) said that this was a good Bill. I agreed with his Amendment and I am sorry that it had to be withdrawn. But I must disagree with his statement that this is a good Bill. In my opinion, it is not. I have a suspicion that it has been influenced by the effect it will have on the rural community rather than on the industrial areas. The Attorney-General said that he was legislating for the whole of England and Wales. I do not ask him to read the debate on the Bill which I introduced 10 years ago, but during it many of his right hon. and hon. Friends from all over England and Wales expressed the same views as my hon Friends and I have been expressing during the various stages of this Bill.

When I heard of the introduction of the Bill in another place some months ago, I confess that I felt a degree of emotion; indeed, it was a feeling of elation. But there is a feeling in my mind that things cannot be as hopeful as I thought they were. When I saw the Bill, I realised that it fell far short of what we expected and was an emasculated version of what the Labour Government did in the last Parliament. An examination of the Second Reading debate on the Labour Government's Bill will show that my hon. Friends and I, when we were on the benches opposite, were very dissatisfied with that very modest Measure. My fears about what would be produced by the present Government have been justified.

It is about 10 years since I introduced a similar Measure which had far more teeth in it than this Bill. It was stimulated by the Report of the Law Commission. The Government of the day—I bear them no ill will for this because it was done democratically and legitimately —because they did not support the Bill, ensured that it was talked out on Second Reading one Friday afternoon. We have waited 10 years for the realisation of a dream. But in South Wales we are bitterly disappointed that we have so little in the Bill, because we have experienced the terrible damage that may be caused by straying animals.

Fundamentally, the problem is fencing. Yet the Bill will discourage responsible—and I stress "responsible"—farmers from fencing. Many of us regard fencing as the only cure for the problem, and yet the farmer who ceases to leave his land unfenced will probably become legally liable for animals which escape from his fenced land. The effect of that will be that land will not be fenced so that animals are kept in, and yet fencing is what we want in South Wales.

The Bill which the Labour Government produced was short of what we wanted, but even those proposals have been altered so as to give complete immunity to those farmers who put their animals on common and unfenced land. I do not exaggerate when I say that every day of every week mountain ponies and sheep ramble down the streets and into school playgrounds where they frighten children and worry parents. Many owners of ponies seem to worry about them only when the times come to round them up for sale. These are the irresponsible owners who have no regard for the welfare of the animals before and after the sale.

Every day sheep stray into gardens and allotments and cemeteries, where they cause anguish to those who care for the graves of their loved ones. They are a constant menace to health, property and safety, especially of young children. The animals themselves are the victims of cruel neglect. They endure pain and death on the roadside, as anyone who has travelled the highways of South Wales knows. These tragic animals are often to be found lying dead or dying on the roadside.

The Government have reduced from 21 to 14 days the period during which these animals may be kept; but how can the owner of a terraced house with a small garden keep an animal for 14 days? How can he keep a sheep or fractious pony or cow in a small garden shed or tool shed for 14 days? I appeal to the farmers who know the problems of keep-these animals. Such accommodation is completely inadequate for these animals

The only other good thing that has come out of the Bill is the announcement that a working party is to be set up to deal with the problem. I thank the Minister for this because this has been done in response to the pleas made by myself and my hon. Friends when we saw the Secretary of State for Wales some months ago. May we be told what the terms of reference will be, who will take part in its work, and where it will meet? I would be grateful for this and any other information. Far more good can come from this development than from the Bill.

Time and again I have stressed the willing support of responsible farmers. I have met them and I know how anxious they are to help find solutions to the problem. They are anxious to co-operate with the local authorities, the nationalised industries, such as the Coal Board, British Railways and Government Departments. I hope that the working party will produce solutions with the co-operation of those I have mentioned.

Having made these critical observations I still accept this Measure, although my heart wants to reject it. In supporting it, I do so with the qualifications I have expressed.

11.33 p.m.

Mr. McBride

As my hon. Friend the Member for Aberdare (Mr. Probert) has said, the only grain of comfort to come from this amended Bill is the announcement of the setting-up of the working party. I reinforce the request of my hon. Friend for details of the terms of reference, its composition and location.

The Attorney-General will recall that on 18th March I said in Committee: In all this, the Solicitor-General has made no mention whatsoever of any power—or lack of them—vested in the local authority, or any desirable increase in those powers."—[OFFICIAL REPORT, Standing Committee A, 18th March 1971; c. 73.] In Swansea we have the problem of the unidentifiable animals. This is not peculiar to Swansea because my right hon. Friend the Member for Cardiff, West (Mr. George Thomas) has similar trouble with herds of abandoned horses. There is no strengthening of local authority powers. Claims for damages as a result of distress caused by an animal are based on the premise that the owner of the animal is an identifiable defendant. The problem in my area is how to protect my constituents and to give powers to the city council when there is no identifiable owner. There are numbers of horses causing distress in the city boundaries.

The position in law is ludicrous. Detention is reduced from 21 to 14 days but a citizen is expected to detain an animal for 14 days and then to recoup money to pay for damages after observing all the procedures laid down in the Bill. How could the right hon. and learned Gentleman tell that to any of my constituents? Would he tell it to any of his constituents even in the highly sophisticated area where he lives? The right due to a constituent in the terms of the Bill is, perhaps, real, but in these circumstances it is illusory.

The Bill makes no provision to define the conditions under which an animal may be kept. Here one comes into contact with the law, unless people apply the humane considerations which are common to and observed by nearly everyone. That, however, is not definitive in the terms of the Bill. Nearly always, the private citizen—my constituent—has no facilities for keeping a captured animal during the legal period of detention.

In my constituency there is a huge corporation housing estate—Penlan—which is sorely troubled by these roaming, ownerless horses. A laugh always comes in this House when one talks of straying animals, but if the Attorney-General lived with this problem, neither he nor any member of the Government would laugh. It is serious. The only facilities are those of tying a horse to a gate post or lamp standard. There might be a shortage of lamp posts on that housing estate. Although this might be a departure from the simple and factual, it stresses that without adequate facilities this provision in the Bill is totally meaningless for Swansea. The Minister of State, Welsh Office, whom we are always pleased to see on the Front Bench, knows this to be true.

We are bothered with a problem for which there is no provision in the terms of the Bill, and no attempt has been made to help the citizen so troubled by animals the owners of which are not identified. No consideration has been given to this modern circumstance. The Minister has, frankly, dodged it.

These animals are a menace in our city. These herds of straying horses in my constituency are ownerless, the great majority of owners have relinquished ownership when they abandoned the horses by turning them out to run wild. It is because of the abandonment of ownership, creating the problem of the unidentifiable defendant, that it would have been appropriate to accord the local authorities a shorter period of legal detention of a straying ownerless animal. The Bill should have given all local authorities sharper legal powers for the sale of captured animals.

This is not an ideological divide in this Chamber but is a problem which must be faced by local authorities, which get no help from the Bill. It contains nothing to help them or to make more stringent the conditions under which these animals can be detained and sold. The ratepayers, knowing that the local authority has no powers, will still complain. The Attorney-General has been remiss in his duty in failing to incorporate a provision such as was half hinted at by his hon. and learned Friend the Solicitor-General in Standing Committee on 18th March. Had the Bill provided for quick sale after capture of the animals, I am certain that this would have been effective.

My view is that the erstwhile owners of these straying animals would be glad to know—if we could eliminate these herds of horses from within and immediately beyond the environs of Swansea—that their liability to legal damages being exacted from them should they be traced had been ended. In any case, no permanent bill of sale is attached to the mane of a horse.

The horse is a noble animal in many circumstances, but herds of horses running wild commit ignoble acts and cause great damage, including, only last week, the destruction of a greenhouse belonging to a constituent of mine.

In neglecting these matters, the Bill is a weak Measure which affords little or no protection to my constituents. It pays no regard to the urban concept of life and starts from a false premise in that it is largely drafted in conformity with life lived in rural surroundings and influenced by representations from rural interests.

The Bill does a great deal for many people, but not for people such as those whom I have described, who are primarily concerned. If ignores the problems that I have described in the highly urbanised Swansea conurbation. In short, we looked for more from the right hon. and learned Gentleman.

11.42 p.m.

Mr. David Clark (Colne Valley)

I do not agree entirely with those of my hon. Friends who suggest that this is a completely bad Bill, nor do I go quite as far as hon. Gentlemen opposite who suggest that it is a good one. It is a Bill which is good as far as it goes, but it does not go far enough.

Clearly, it is a difficult Bill in that it has to strike a balance between the farmer and the motorist, between the resident and the visitor, between the old and the new and, perhaps most important, between the rural community and the urban community. However, the problem of straying animals is not confined to South Wales. It occurs wherever high land or moor land verges closely on built-up areas. It is true of South Wales. It is also true of the Pennine valleys of East Lancashire and the West Riding.

Time and time again I receive complaints from constituents who, because of the nature of the land, have had to build on the sides of hills close to moor land and have great trouble from wandering sheep. While I cannot describe the way that sheep wander down in quite the way that my hon. Friends from South Wales have, we have problems in my constituency. There were so many incidents in the town of Meltham, for example, that a Yorkshire farmer named Nimrod Earnshaw decided to tackle the problem in his own way. He would have nothing to do with cattle grids. He decided to set animals against animals. Where the road led into the village, he set two guard dogs tied to gate posts. They were there 24 hours a day, 7 days a week. They solved the problem. Eventually, modern methods took over. We now have a cattle grid, and the problem is solved.

There are some parts of the Bill which I think are admirable. Clause 2, for example, places the liability for a dangerous animal in its entirety on the owner. That provision is welcomed by both sides of the House. It is a progressive move at a time when we are becoming more and more exotic.

Clause 4 spreads the liability on the owner of an animal which strays on to another person's land and causes damage. I accept that, though I am slightly worried that it may cover the physical aspect of damage. However, I think we have missed an opportunity here in that, if cattle wander, they may carry a contagious disease. The Bill would have been improved by the inclusion of a provision about brucellosis.

I come, then, to the most contentious provision. I refer, of course, to Clause 8. I am glad that the Committee decided not to suggest that all land should be fenced. I think that there is great advantage in having some unfenced land. In certain parts of the country it adds to the amenity values, and it would be very expensive.

I am slightly worried about the term "customary", which could be judged in many different ways. Perhaps a number of years should have been stated in the Clause. It will make it difficult for certain farmers in what I call the grey areas between the high moorlands and the relatively low land of the valleys, which used to be prosperous sheep farming areas but which are now not so prosperous, with walls and fences falling down. Nevertheless, that land is customarily fenced, so the farmers will be liable for their animals.

I thank the Attorney-General for removing the word "ditching". This is a great step forward and, as has been mentioned, will be of great advantage to those in the Yorkshire area.

I hesitate to mention the next point, knowing the great interest of hon. Gentlemen opposite in the hunting and shooting world. But I am at a loss when I see that quails are classed as poultry, whilst pheasants, partridges and grouse in captivity are classed as livestock. I think that this decision was taken because the Lord Chancellor, in another place, said: …quails are always domesticated in this country. Quails might escape from a farm but, we understand, would not be able to survive outside it."—[OFFiciAL REPORT, House of Lords, 11th December, 1969; Vol. 306, c. 716.] This was a little misleading, because quails are wild, just as pheasants and grouse are wild; they are migrant summer visitors. I am at a loss—perhaps a reflection of the changing habits of hon. Gentlemen opposite—and amazed that this part of game terminology has, so to speak, slipped through the net.

With these points, suggesting that there may be certain difficulties, but seeing that the Bill is an attempt to codify the statute law and to replace a certain part of the common law, which most people were beginning to admit was not completely satisfactory, I welcome the Bill so far as it goes.

11.48 p.m.

Mr. Jeffrey Thomas (Abertillery)

My hon. Friend the Member for Colne Valley (Mr. David Clark) may have touched on the real mischief of the Bill. It is neither wholly good nor wholly bad; it is a kind of mongrel Bill.

The Government have lost an opportunity of speaking with a clear voice about the real problems affecting thousands of people not only in the South Wales valleys but in the country as a whole. It seems that, once more, the Government have been captivated by the blandishments of the farmers in this regard. The Government either do not grasp the gravity of the problem or they do not wish to grasp the reality of it.

In my view, the Bill is a sham and a pretence. It tinkers with the mechanism and tickles round the edge of the problem. There is no point in the Government paying lip service to the idea of the environment or to the idea of pollution whilst thousands of sheep and horses and other livestock are roaming the streets of our towns in South Wales. It makes mockery of their claim to be really interested in solving the appalling difficulties confronting hundreds of people in the South Wales valley towns who are now, frankly, at their wits end to know how to deal with the problem. One only hopes that it will not be too long before the Government introduce a more realistic measure.

11.50 p.m.

The Minister of State, Welsh Office (Mr. David Gibson-Watt)

Very many of the points that have been made in this debate were made in the Standing Committee, so I shall not seek to deal with them yet again. The major responsibility for this Bill has rested on the shoulders of my right hon. and learned Friend the Attorney-General and my hon. and learned Friend the Solicitor-General.

As far as straying animals are concerned, the major contribution to the debate has come from hon. Members representing constituencies in the mining valleys of South Wales, which is why I wind up the debate. Those who know the area know that although the problem is not confined to South Wales it is there greater and more concentrated. It was because of this that following representations to my right hon. and learned Friend the Secretary of State for Wales and myself, not only by a deputation of hon. and right hon. Members opposite but by other interested parties in South Wales, we have decided to set up a working party.

I was asked by the hon. Member for Aberdare (Mr. Probert) about the terms of reference and the membership of the working party, and where it would meet. It will include representatives of the interested divisions in the Welsh Office—that is, the roads and general divisions—the Department for the Environment and the Department of Agriculture, Fisheries and Food. In addition, there will, when necessary, be participation by the Lord Chancellor's Department and the Treasury. The Welsh Office will provide the secretariat. I will take the chair whenever possible. The working party will meet sometimes in Wales and sometimes in London. In Wales, it will not necessarily confine itself to Cardiff but will be prepared to visit areas where the problem is particularly difficult.

The terms of reference I have recommended to the various Departments are as follows: To consider problems arising from the straying of animals in the industrial valleys of South Wales, taking note of views expressed orally and in writing by public bodies and others representative of the areas concerned; to report jointly, with recommendations to the Lord Chancellor, the Chancellor of the Exchequer, the Secretary of State for the Environment, the Secretary of State for Wales and the Minister of Agriculture, Fisheries and Food.

Mr. George Thomas (Cardiff, West)

Those terms of reference appear to pre- clude the hon. Gentleman and his working party from looking at the problem of horses straying in Swansea and Cardiff. My hon. Friend the Member for Swansea, East (Mr. McBride) has spoken of the problem there, and it is also a grievous problem in areas of Cardiff.

Mr. Gibson-Watt

If the right hon. Gentleman would prefer me to leave out the reference to the industrial valleys and include South Wales, that could be considered. In no way would one wish to exclude Swansea, where a problem exists.

Mr. George Thomas

Or Cardiff.

Mr. Gibson-Watt

I was glad that the hon. Gentleman the Member for Colne Valley (Mr. David Clark) said that the Bill is good as far as it goes, and that parts of it are admirable. I, too, think that parts are admirable. I do not consider it to be, nor was it intended to be, a vehicle to deal with all the particular problems raised by hon. Gentlemen, but we must take credit for being the first Government to set up a working party to look at the problem of straying as it exists in South Wales.

Mr. McBride

Will the working party have legal advice on the problem which I put to the House: namely, the question of damages as between an identifiable and an unidentifiable defendant?

Mr. Gibson-Watt

I cannot be specific on that particular point put forward by the hon. Gentleman, but these are matters which we shall be looking into.

This Bill has had a great measure of support on both sides of the House. Since the hour is almost midnight, I know that the House will acquit me of cutting my remarks too short. I hope that the House will accord the Bill its Third Reading.

Question put and agreed to.

Bill accordingly read the Third time and passed, with Amendments.