OFFENCE OF UPROOTING ETC. HEDGEROW (Hansard, 7 May 1993)

§ Mr. Clifton-Brown
I beg to move amendment No. 1, in page 1, line 6 after 'person', insert 'intentionally'.

Mr. Deputy Speaker
With this, we may take amendment No. 35, in page 1, line 22 leave out from 'that' to the end and insert 'he took all reasonable measures to prevent the hedgerow being uprooted or destroyed or, as the case may be, the quality of the hedgerow being significantly impaired'.

§ Mr. Clifton-Brown
I am in error. I should have declared the fact that I am a farmer. Over the past 20 years, I have had a net gain on my farm of more than one mile of hedgerows. I would not like anyone to think that I do not have an excellent record on hedgerows. I am also a member of the Country Landowners Association, the National Farmers Union and the Council for the Protection of Rural England.
Amendment No. 1 strikes at the heart of the Bill. What is the motive behind the proposal? The matter is highly subjective, but I submit that the local authority, when deciding whether to issue an enforcement notice under the Bill, should have to prove intent. It is a fundamental tenet of the criminal justice system that a person is innocent until proven guilty. It would be rather draconian for the Bill to reverse that trend.
As I said in Standing Committee, there is precedent for the word "intent" in other legislation. Section 1 of the Wildlife and Countryside Act 1981 includes the word "intent". It states that it is a substantial Act which covers many rural issues and it makes it an offence to damage "intentionally" the nest of a wild bird. Therefore, the concept of consent is understood by the courts and by the rural community. It would be an appropriate word to use in the Bill. There are other statutory precedents. The Badgers Act 1991, as consolidated by the 1992 legislation, contains the word "intent".
As for amendment No. 39, my hon. Friend the Minister has recognised that we must look carefully at what the 462 intention was. Although he has not used the word "intent", he has come some way between the Bill as originally drafted and amendment No. 1. Amendment No. 1 is much fairer on the farming community, which will have to implement the Bill. Authorities, when deciding whether to issue an enforcement notice or proceedings against an offender, should have to prove intent, in common with all other tenets of the British justice system.

§ Mr. Peter Ainsworth
Again, I am sympathetic to the general point. It occurs to me that the notion of strict liability, which is incorporated in the Bill as it stands, seems somewhat harsh in the circumstances, but I cannot recommend to the House amendment No. 1, which would make it necessary to prove intent. It would be too difficult for successful prosecutions to be undertaken. It naturally follows that I believe that amendment No. 1 would severely impair the effectiveness of the Bill.
I have therefore brought forward amendment No. 35, which I commend to the House. It creates the defence of having taken all reasonable measures to prevent the destruction of or damage to a hedgerow. There is still the onus to take due care when working in the vicinity of hedgerows, but allowance is made in amendment No. 35 for cases of genuine accident to be argued.
That is a fair arrangement which will nevertheless retain the effectiveness of the Bill as a deterrent against the careless treatment of hedgerows. That is why I ask for amendment No. 1 to be withdrawn and for amendment No. 35 to be accepted.

§ Mr. Clifton-Brown
I beg to ask leave to withdraw the amendment.