§ Mr. ThomasonI beg to move amendment No. 18, in page 2, line 18, leave out from 'unless' to 'the' in line 20.
§ Mr. Deputy Speaker (Mr. Michael Morris)With this, it will be convenient to discuss the following amendments: No. 17, in page 2, line 19, at end insert—
`( ) he is under the age of 16 years; or.'.
§ No. 21, in page 2, line 25, after 'to', insert '(a)'.
§
No. 14, in page 2, line 26, after '1948', insert
'or
§
No. 16, in page 2, line 26, after '1948', insert
`or
§
No. 27, in page 2, line 26, after '1948', insert
`or
§
No. 28, in page 2, line 26, after '1948', insert
`or any person aged 70 years or more'.
§
No. 29, in page 2, line 26, after '1948', insert
`or
§
No. 31, in page 2, line 26, after '1948', insert
`or a person with hearing impairment'.
§
No. 32, in page 2, line 26, after '1948', insert
`or a person if he is a disabled person for the purposes of section 1 of the Disability Discrimination Act 1995'.
§
No. 33, in page 2, line 26, after '1948', insert
`or any person who due to his medical condition cannot reasonably be expected to dispose of the faeces'.
§
No. 15, in clause 7, page 4, line 11, at end insert—
`(3) In this Act "wild mammal" has the same meaning as section 3 of the Wild Mammals (Protection) Act 1996.'.
§
No. 30, in page 4, line 11, at end insert—
`(3) In this Act "hearing dog" has the same meaning as in section 37 of the Disability Discrimination Act 1995'.
§ Mr. ThomasonThe amendments in my name relate to three specific and separate issues. Two of them are probing amendments, and the third argument has largely been covered in earlier debates.
Amendment No. 18 is designed to explore whether it is appropriate to leave the reasonable excuse defence in the Bill in its present form. That question was raised in Committee by my hon. Friend the Member for Ribble Valley (Mr. Evans), who was concerned about what constitutes "reasonable" in the context of the Bill. It is a 655 term which we use frequently but which, for obvious reasons, we seek not to define because it allows for a great deal of flexibility.
I wonder how appropriate such flexibility may be when it comes to certain defences. Perhaps the Minister or my hon. Friend the Member for Basingstoke (Mr. Hunter) will be able to answer my questions. What about someone who said that he was late for an appointment and did not therefore use a pooper scoop? Would that amount to a defence in a court under the clause? What if someone was looking the other way and did not notice that the dog had created a mess? What if the weather was inclement? Those may appear petty points, but they will be raised in courts of law at some stage. As the Bill stands, I am not sure whether they would be considered reasonable excuses.
A person may be feeling ill; someone else may forget to take a pooper scoop with him. Lack of knowledge of the law may not be a defence, but those may be considered reasonable excuses.
I also understand that a reasonable excuse can form an important defence in relation to a number of areas touched on in earlier debate, and it may be right to leave some such provision in the Bill.
My second probing amendment, No. 17, has to do with age. I appreciate that there is an age below which there is no criminal responsibility, but those nearing the age of 16 may face prosecution under the Bill for not having a pooper scoop with them. Yet we know that children are often left in charge of animals and told to take them for walks.
§ Mr. Patrick ThompsonMy hon. Friend keeps referring to the possession of a pooper scoop. I understand that the faeces have to be cleared away, but I am not sure whether the Bill specifies how that should be done.
§ Mr. ThomasonThe Bill refers to a device, if I remember rightly. Indeed, a number of different devices may be used. My point concerns whether it is fair that youngsters of 14 or 15, or even younger, should face prosecution for not clearing up a mess.
The third argument dealt with in the amendments has been largely covered in our previous debate, so I shall not dwell on it at length because I want the Bill to make progress. I am conscious that this proposed legislation ran into difficulties in the other place after presentation in a similar form by my hon. Friend the Member for Blackpool, North (Mr. Elletson). Despite some of the assurances that we have received today, there is still a danger that the owners of dogs used for sporting or similar purposes will be prosecuted. One has visions of people in shooting parties walking behind their retriever with a poop scoop, or similar device, in case a bird came down on land that was included in the Bill—what nonsense that would be.
I understand that my hon. Friend the Member for Basingstoke has given assurances that the Bill does not intend to hinder sport in any way, and I do not seek to raise the pros and cons of hunting and shooting in this debate, but it is terribly important that the Bill does not become involved in that issue and thereby possibly lose its way in the other place.
§ Mr. John CarlisleYou, Mr. Deputy Speaker, might take a keen interest in my remarks, because I know of 656 your interest in the subject of shooting. My hon. Friend is absolutely right to press the promoter of the Bill and the Minister that there should be no doubt whatever that any dog involved in any sporting activity, particularly hunting and shooting, which has been mentioned this morning, must be totally exempt from the Bill in every possible way. We do not need further reassurances from another place. We want them here and now.
§ Mr. ThomasonThat is indeed the point that I was making. I am conscious of the time and so will not add further to what I have said.
§ Mr. ClappisonI begin with amendment No. 18, an important amendment, which deals with the defence of reasonable excuse. I listened carefully to my hon. Friend the Member for Bromsgrove (Mr. Thomason). I appreciate the way in which he put his argument and tried to establish what might amount to a reasonable excuse. I have to remind him that in many byelaws there is already such a defence. In this case, it is appropriate that it should be included in the Bill and that people should have the opportunity afforded by such a defence.
Broadly speaking, it is important to strike a balance between maintaining the effective scope of the Bill, making it an effective and enforceable measure without inappropriate exemptions, and the flexibility that is necessary to do justice in individual cases. That is why we have the defence of reasonable excuse, and it should apply in these circumstances as well. As my hon. Friend will know, it will be for magistrates courts, if necessary, to listen to those cases and to use their common sense and experience and decide whether, in all the circumstances and after hearing the evidence, a reasonable excuse has been established.
On my hon. Friend's first example, which he understandably gave, one would imagine that, subject to the circumstances and the evidence that the magistrates hear, being late for an appointment would not normally be a reasonable excuse. It might be different, however, if it was construed to include police officers or members of the emergency services on the way to an emergency, taking their dog with them. That would be different. In every case, it is up to the magistrates to use their common sense and experience, which they do.
§ Mr. John CarlisleI wonder whether my hon. Friend, in considering this important amendment, has considered the position of hon. Members coming into this place once the Division bell has rung. Perhaps we would see hon. Members rushing down Whitehall with pooper scoopers—hon. Members do bring their dogs into this place—but missing a Division because they stopped to clear up the mess that their dogs made. Is that covered in the Bill?
§ Mr. ClappisonWe are a House of dog lovers; I know that there are many dog lovers in the House. Hon. Members might have to make a fine judgment on what they are most afraid of—the poop scoop enforcement officer or the usual channels of the House. I think that we can leave that to common sense and discretion in individual cases, although I am being urged not to from certain quarters once again.
657 Amendment No. 17 proposes an exemption for young people. I appreciate that young people—under 16 years of age in this case—often walk dogs. I do not entirely agree with my hon. Friend the Member for Bromsgrove on the amendment, because it is important for young people to be set a good example and for them to set a good example themselves and get into the habit of clearing up after their dogs. One hopes that they will do that throughout their lives. It would be appropriate to keep the provision in force in regard to young people.
We have already been through the sporting issue in some detail, so I hope that the House will not mind if I do not go over that again, but move on to amendment No. 28, which covers older people.
I suppose that in some respects the arguments that apply to young people apply to older people, too. There is no reason why a dog owner over 70 should be in a position any different from that of a younger dog owner. We know that many senior citizens in our constituencies enjoy the companionship of a dog, and especially enjoy taking their dogs for walks, which provides exercise both for themselves and for the dogs. Many have an enjoyable time with their pets. None the less, I am sure that they feel equally strongly about the need for effective and enforceable coverage in the byelaws to deal with irresponsible dog ownership.
In any particular instance, of course, an older citizen's case may fall within the ambit of the defence of reasonable excuse for a failure to clear up. Again, that is a matter for the magistrates courts.
Broadly, it would he wrong to put too many exemptions on the face of the Bill. It would be better to leave them to—
§ Mr. FabricantBefore my hon. Friend finishes, may I refer him to amendment No. 27, in my name? I shall not press it, but it makes an important point about dogs being used by Her Majesty's armed forces or by Customs and Excise, and about police dogs, and fire and ambulance service dogs. Will they not be exempted?
Hon. Members will know that every day the police bring sniffer dogs into the Chamber—I look around nervously, but I see no poop to be scooped. Is my hon. Friend saying that in the course of their duties, the police should be scooping their dogs' poop?
§ Mr. ClappisonMy hon. Friend makes an understandable point in his own way—although perhaps I have already dealt with the spirit of his question in my description of what might amount to a reasonable excuse for a member of the emergency services. I understand my hon. Friend's concern, but I urge him not to try to put too many exemptions on the face of the Bill, but to rely on the defence of reasonable excuse, which we can rely on our magistrates courts to apply with common sense.
§ Mr. HunterI endorse the Minister's comments. While reading through our proceedings on the similar Bill that was introduced last Session, during which the then Minister produced the figures, I noted that the defence of reasonable excuse is to be found 957 times in more than 400 statutes enacted over the past 150 years. It is a well-established form of defence. Were we to embark on 658 the course of listing particular exemptions, we would never get the list complete or right. It is far simpler to go for the all-embracing defence of reasonable excuse, which can cover every legitimate reason why the poop has not been scooped.
I assure my hon. Friend the Member for Luton, North (Mr. Carlisle) that if I had not received the assurance from the British Field Sports Society, I would not be promoting the Bill. I have looked through the list of exemptions, and I cannot recall having taken part in any field sports over the past 40 years that are not covered. I think that the list is foolproof, and I feel satisfied. So I hope that my hon. Friend will pay heed to my arguments.
§ Mr. John CarlisleI am grateful to my hon. Friend for allowing me to intervene, especially as he and I are both wearing the British Field Sports Society tie this morning, to show our solidarity and support for such activities. I am grateful to my hon. Friend for what he said, as will be the whole sports lobby, which is supported by hon. Members on both sides of the House, albeit by a minority of Opposition Members.
§ Mr. ThomasonI beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. FabricantI beg to move amendment No. 25, in page 2, line 24, leave out '3' and insert '1'.
§ Mr. Deputy SpeakerWith this, it will be convenient, to discuss the following amendments: No. 24, in page 2, line 24, leave out '3' and insert '2'.
§ No. 34, in clause 4, page 2, line 38, leave out from beginning to end of line 14 on page 3.
§ Mr. FabricantI rise to speak wearing my John Lewis, Milton Keynes tie.
§ Mr. John CarlisleBought in the sale.
§ Mr. FabricantYes.
These probing amendments relate to the value of the fine. I refer hon. Members to clause 3(2), which makes it clear that the fine on summary conviction will be set at level 3. I understand that that is the maximum fine of £1,000. Amendment No. 25 would set that fine at level 1, which is equivalent to a £200 maximum fine. Amendment No. 24, which contradicts amendment No. 25 and is mutually exclusive, states that the fine should be set at level 2, which is equivalent to £500.
I tabled the amendments simply to give hon. Members the opportunity to consider whether a maximum fine of £1,000 is too much and should be set at either £500 or £200. I accept, however, that the size of the fine will be up to the discretion of the judge.
Amendment No. 34 would remove clause 4. Hon. Members, including my hon. Friend the Member for Birmingham, Hall Green (Mr. Hargreaves), have spoken about the over-zealous nature of some local councils. Clause 4 relates to the fixed penalty notices that can be issued by an authorised officer of a local authority. If one were to indulge in a flight of fancy, one could imagine a phenomenon far more dangerous and ominous than the 659 appearance of traffic wardens on our streets some 20 years ago: imagine the prospect of a dog warden handing out fixed penalty notices.
Hon. Members may wish to consider removing clause 4 so that the issue of a penalty notice has to be dealt with in a court of law. I accept, however, that hon. Members might consider that the powers given to local authorities to issue fixed penalty notices, despite and notwithstanding the dangers of over-zealous officials, would reduce the burden on the courts.
§ Mr. ClappisonI have listened carefully to the brief arguments of my hon. Friend the Member for Mid-Staffordshire (Mr. Fabricant). I believe that the level 3 fine is appropriate, given the levels of fine for other types of offences. We should also bear it in mind that we are seeking to send out a message that we take dog fouling seriously, because it causes justifiable concern to many of our constituents. I therefore believe that a level 3 fine would be an appropriate penalty for those prosecuted for the offence.
I cannot support amendment No. 34, which would remove the power of a local authority to issue a fixed penalty notice. That could have some undesirable and possibly unintended outcomes; for example, in certain circumstances it could lead to local authorities not prosecuting or the courts becoming over-burdened. It is important that the fixed penalty regime should remain in the Bill.
§ Mr. HunterI note the probing amendments that have been tabled by my hon. Friend the Member for Mid-Staffordshire (Mr. Fabricant).
I should like to draw particular attention to my hon. Friend's argument about amendment No. 25. It is important to remember that the current maximum fine for a litter offence is £2,500. That is considerably more than the maximum fine envisaged under the Bill, and a certain school of thought would argue that failure to clear up after a dog is worse than merely dropping litter. That argument is worth exploring. The Bill should stand as it is. The level of fine is right; it is both a deterrent and a punishment for an extremely unpleasant offence.
§ Mr. FabricantAs no other hon. Members have suggested that fines should be at any level other than level 3, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.