HL Deb 02 December 1969 vol 306 cc62-74

5.22 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair.]

Clause 9 [Killing of or injury to dogs worrying livestock.]:

LORD AIREDALE moved Amendment No. 18: Page 6, line 12, leave out ("if, and")

The noble Lord said: Perhaps I may be allowed, in discussing this Amendment, to speak also to the next because the point it deals with is exactly the same. The question is whether the expression "if, and only if" really means any more than "only if". I should think that it is an expression borrowed from the field of oratory. At the hustings one might say, "You will get justice if, and only if, you vote for Snodgrass." All you are saying is "only if", and when the heckler answers, "Never, never, never" all he means is "Never".

So far, I think we have resisted the temptation to introduce into the Statute Book these rather disguised forms of emphasis. For instance, we do not put parts of the Statutes in capital letters or italics, or underline them. We let the draftsman use his skill in such a way as to get the emphasis the way he wants by using ordinary words without any surplusage. It seems to me that the words "if, and" here are mere surplusage. They do not add to the meaning of the subsection. All that is meant is, "only if". If I am right and if these words are surplus, then let us leave them out. I beg to move.

THE EARL OF CORK AND ORRERY

I think that I must join issue with the noble Lord on this point. He advocated, reasonably and ably, leaving out "if, and" while ignoring the fact that he is also omitting a comma. That comma is perhaps of some significance because, if it is left out, the subsection will then read: For the purposes of this section a person is entitled to act for the protection of any livestock only if"— and so on. I think that the words become ambiguous. It is a question whether the word "only" refers to the following words or to livestock, of whether a person is entitled to act for the protection of any livestock only. This will not do. I suspect that in thinking like this, I am thinking backwards along the same line followed by the draftsman who drafted this clause. Probably he started by saying "only", or perhaps simply "if"; and then, for some mysterious reason, he thought that he was excluding damage done to furniture or to any property other than livestock. He therefore felt that the word "only" was needed; and, furthermore, that a comma was needed after "livestock if", and that the only way of getting round the difficulty was to put "if, and only if". Therefore, I think that the words might stand.

THE LORD CHANCELLOR

I gave the noble Lord the head of the household, and I hope to be able to help him on a later Amendment; but on this point I think that the Bill is right. It is a serious thing to shoot a dog. We must make clear what alone the circumstances are. In strict logic the wording is correct. It indicates that the condition is both necessary and exclusive. I think that for those reasons the wording of the learned Parliamentary draftsman is correct.

LORD AIREDALE

If, as it appears possible, I might hit the target with two Amendments out of three, I am certainly not going to be so mean as not to withdraw this Amendment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE EARL OF SELKIRK moved Amendment No. 20: Page 6, line 30, leave out ("or is making off").

The noble Earl said: Clause 9 deals with the circumstances in which dogs may be shot. It does not refer to the civil liability for damage they might cause, but it is probably true to say that, for the first time, an attempt in some sort of detail has been made to lay out the conditions. I recognise that this is a very difficult question. Sheep get worried mostly at night. They are in outlying places, and it is not often that people are present at all. It happens from time to time that dogs become killers and there are dramatic stories in which sheepdogs themselves have sometimes fallen into this habit. It is a matter which raises considerable feelings on many different sides.

I believe that we all agree on what the right kind of action should be. What I call in question is whether we have translated it into words which cannot be given a different interpretation. We are dealing with the defences which are open to someone who is entitled to take action, either because he owns the livestock or is authorised by the landowner. There are two defences in Clause 9(3)(a) and (b). The first one is clear. If a dog is worrying sheep and there is no other way of stopping it, there is, to my mind, no doubt that the shepherd has a perfect right to shoot the dog. The second case, dealt with in paragraph (b), is quite different: it is not to stop a dog worrying, but merely to prevent its coming back later on to do it. It is purely a preventive measure for the future. The point to remember here is that worrying has a rather wide interpretation and includes chasing. In fairness, I should say that dogs do chase sheep and in many cases do not do a great deal of harm. I am taking only an extreme case.

In the second place, the words with which I am dealing are the words "or is making off", which I suggest should be omitted. The reason why I say that is because "or is making off" means that the dog is no longer in the vicinity. If it were in the vicinity, then those words would be redundant, and it would be "while the dog remains in the vicinity", which appears immediately before. The dog is no longer in the vicinity if the words "or is making off" have any meaning; it means somewhere else, and it can be on someone else's land, or anywhere. In other words, the dog which has been chasing the sheep can be followed up and shot anywhere. Frankly, I think this goes too far. I do not think it is necessary, and it may lead to circumstances which would not be thought to be desirable: indeed, they are stated in the Law Commission's Report. I believe that the whole object could be achieved—and this is the considerable strength of the law already—by retaining the word "vicinity" and leaving out "or is making off". I beg to move.

THE LORD CHANCELLOR

We have heard a good deal, though not too much, from the farmers' lobby, and I was wondering when the dogs' lobby was going to turn up. I have a good deal of sympathy with the very reasonable case which has been put forward by the noble Earl, Lord Selkirk. It may well be said that the existing words "remains in the vicinity or is making off" are rather uncertain. It is certain that these words were never intended to allow a farmer to follow a dog for a couple of miles and then shoot it. Subject to what may be said by the farmers, which we do not know yet, I think the noble Earl has made out a case at least for some reconsideration of this point, though whether his solution is the right one I am not sure. It would be possible to get a greater degree of certainty than "in the vicinity".

I do not know whether the noble Earl has considered the Northern Ireland legislation which is referred to in paragraph 83 of the Report. that confines the right to shoot a dog after attack to the land on which the livestock are kept and any land contiguous thereto. I am entirely in the hands of the Committee, but, subject to any views that may be expressed, this seems to me to be much more certain than anything that we have at the moment, and to be not unreasonable. If the noble Earl will accept this as a reasonable solution, I shall be happy between now and the Report stage to arrive at an exact form of words with him.

LORD HAWKE

I should like to say something to the noble and learned Lord. The words "making off", to my mind, are not very precise English. They have a colloquial, slangy sound, because you can say colloquially that the dog that is making off is running away, and, on the other hand, a burglar also "makes off" with swag. I think it is the wrong type of words to use.

LORD HENLEY

I hope that, even if the noble and learned Lord the Lord Chancellor feels that he wants to find better words than "or is making off", he will not damage the clause as it stands. One does not want to weaken it in any way. The damage done by does to sheep farming is considerable, and there are some areas of land around certain towns where you cannot keep sheep at all because of dogs. Every protection that can be given to sheep should be given. I hope that in improving the words the noble and learned Lord will not weaken the clause.

THE LORD CHANCELLOR

I do not think it really weakens the clause, but it prevents what might have been an exaggerated construction from being given to them. The form of words that I have suggested from the Northern Ireland legislation is more precise, and might meet the noble Earl's case.

LORD NUGENT OF GUILDFORD

I feel a good deal of sympathy with my noble friend's Amendment, and I think there is a point here. The practical difficulty in the clause as now drafted is the time element. Under subsection (3)(b), if the dog has been worrying the livestock, the sheep or cattle, and the farmer comes up when it is doing so and the dog is making off, then, fair enough, he shoots it. But if it happened hours before, and a dog is racing across the field, it may not be the same dog. There is an element of doubt here which could take the clause further than we should wish it to go. As I say, I sympathise with my noble friend, because the shooting of a dog is serious; it is a frightful blow to the owner, anyhow, and would cause a good deal of sorrow. But where we give a legal right to shoot it we must be absolutely sure that it is the right dog that is being shot, and as the clause is now drafted it might not be.

I should certainly like to look at the suggestion made by the noble and learned Lord the Lord Chancellor of the alternative from Northern Ireland, to make sure that we have the time element absolutely right, and that the dog that is making off is the dog that has been seen attacking the cattle or the sheep. In that sense, I should be happy, if my noble friend would accept it, for the noble and learned Lord to proceed as he suggests.

THE DUKE OF ATHOLL

I think the noble and learned Lord the Lord Chancellor said that in Northern Ireland it was the land on which the livestock were or land contiguous to it. By "land", does that mean an enclosed field on which the livestock are, or the land belonging to that particular farmer? And the land contiguous to it presumably means land belonging to other farmers. What is the exact definition of "land" in this sense? It seems to me that in unfenced areas it could be a very large area. It could be said that the livestock were on certain land when they were four or five miles away, because there was no fence or barrier between the livestock and four or five miles away, which is where the dog might be shot.

THE LORD CHANCELLOR

My answer to that is that I do not know. It is one of the things that one will have to consider. What the Northern Ireland legislation says is that the shooting took place on land whereon the livestock were kept or depastured or on any land (including a highway or public path) contiguous thereto. I am not sure whether there is a definition clause in the Act, or, if there is, in which way "land" is construed. I had taken it to be land in a particular ownership; but that may be wrong. That is one of the matters that we shall have to consider if the noble Earl feels inclined to accept the compromise.

THE EARL OF SELKIRK

I am grateful to the Lord Chancellor for what he has said. As my noble friend the Duke of Atholl has said, the problem is identifying the dog. If someone shoots the wrong dog it causes great bitterness. There is another point which does not conic in this clause, which is what I would call hunting down the killer". There are occasions when this is necessary. The killer has to be found and killed, removed or restrained. As I say, it is not covered by this clause. I am not greatly impressed by the, frankly, almost as vague term, as my noble friend the Duke of Atholl pointed out, of "land contiguous there to" It depends on the conditions of the land. However, I am very willing to accept what the noble and learned Lord has said, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [General interpretation]:

5.39 p.m.

LORD AIREDALE moved Amendment No. 21: Page 7, leave out line 18, and insert ("horse, ass, mule, hinny, sheep, pig, goat and")

The noble Lord said: The Interpretation Clause, in its definition of the word "livestock", starts off in the singular by saying "any animal of the bovine species", and then it goes into the plural and all the other animals are described in the plural. I do not mind whether we have the singular or the plural, but I suggest that we ought to decide which, and for the sake of consistency stick to the singular or the plural and not mix them together. I beg to move.

THE LORD CHANCELLOR

I think the noble Lord has a point here. There are really three alternatives, are there not? First, as the Bill now stands, "livestock" means any animal of the bovine species, including horses and so on. The second is what the noble Lord suggests; that is, "livestock" means any animal of the bovine species, horse, and so on. The third, I should have thought with respect, was the right one, having regard to the fact that you cannot escape the fact that "livestock" is a plural noun, and it should really be "livestock" means any animals of the bovine species, horses and so on. Then they would all be in the plural. The plural includes the singular, so that is all right. The difficulty is created by the fact that you start with a plural noun. If the noble Lord felt inclined to withdraw his Amendment and put down on Report stage a change from "animal" to "animals" I should be happy to accept it.

LORD NUGENT OF GUILDFORD

Before the noble Lord, Lord Airedale, replies and possibly accepts the noble and learned Lord's invitation, a point struck me as I listened to the noble and learned Lord's suggestion. If the Bill makes the definition plural, referring to "animals", is there a danger that where there was a single animal, for instance one cow or one sheep, it would not then be within the definition of the Bill for the purpose of an attacking dog, or some other reason? We should be in further trouble in that way.

THE LORD CHANCELLOR

I have asked about that, and I am told it is quite all right.

LORD HENLEY

It is not so much a plural but a collective noun, and can you not perfectly well have, "livestock, animal" and the singular after it?

THE LORD CHANCELLOR

I think "livestock" is really a plural noun.

LORD CONESFORD

I greatly prefer the Amendment as drafted. It does not really matter what "livestock" is; we say what it means for the purposes of this Bill. It is much more natural to say that it means any animal, horse, ass and the rest, and it sounds much more natural in the singular than the plural. To say "livestock" means any animals —although no doubt the word will be correctly construed whatever we do—seems far less elegant than the clause would be if the Amendment now being moved were accepted.

LORD AIREDALE

I felt 99 per cent. certain that I was going to accept the invitation of the noble and learned Lord the Lord Chancellor until I heard the noble Lord, Lord Conesford, speak. I think I will still accept the invitation, although I am reinforced by what the noble Lord has just said. As for the word "livestock" being a collective noun, although it is of course a collective noun what has struck me is that throughout this Bill it is used in the singular. Thus in Clause 4 we have, "where livestock strays". It does not say, "where livestock stray". However that may be, I feel quite sure that we shall be able to resolve this matter at the next stage of the Bill. In the meantime, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.54 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 22: Page 7, line 21, after ("guinea-fowls") insert ("pheasants, partridges").

The noble Lord said: This Amendment would seek to extend the definition of poultry in the Bill by including the words, "pheasants" and "partridges". This is a considerable extension of the normal meaning of "poultry", although noble Lords will probably agree that to include pigeons is quite an extension of the normal meaning of "poultry", but it is necessary for practical reasons. I suggest that there is a case for including pheasants and partridges as well. Both these species are often artificially reared —particularly pheasants— and it seems more logical to include them within the scope of the Bill. Obviously, there is a special case to include them in regard to the powers in Clauses 2 and 9 in connection with damage by dogs, which make the owner of a dog responsible for the damage done to livestock, and in the ultimate instance gives the owner of the livestock the right to shoot the dog in order to defend the pheasants or partridges. Of course, it is mostly pheasants—although I suppose partridges to some extent—that are particularly vulnerable when they are in the rearing stage to an attack by a marauding dog. There should be the same right for the owner of the livestock to defend his stock against dogs in the same way as with other poultry.

On the other aspect of the Bill, the liabilities under Clause 8 for straying on the highway, with regard to pheasants or partridges that stray on the highway the consequences are perhaps more theoretical. The pheasant or partridge unwise enough to throw his weight about with motor cars on the road usually ends up with a broken neck in the boot of the motor car, and I doubt very much whether the owner of the motor car would bother to bring an action against the owner of the adjoining sporting right. I think there is a case on the first point for including pheasants and partridges in the definition of poultry. I beg to move.

LORD VIVIAN

Before the noble and learned Lord the Lord Chancellor replies, may I draw his attention to an omission. I refer to quails. There are over twenty quail farms in this country in which a considerable sum of capital is invested. For that reason, I would ask the noble and learned Lord, and the noble Lord, Lord Nugent of Guildford, whether they would agree to the inclusion of quails when the Bill is presented on Report stage.

THE EARL OF CORK AND ORRERY

I wonder whether I may draw attention to something which might happen in the direction of ambiguity if this Amendment is accepted. The clause at present reads that "poultry" means domestic fowls, turkeys and so on. It is clear that fowls, turkeys, geese, ducks, guinea-fowls and possibly pigeons are domestic, but does the word "domestic" apply to all of them, or is it intended to apply only to "fowls"? If the word is intended to apply to all of them, we shall be stuck with "domestic" pheasants, which seems rather unusual. On the other hand, if it is meant to apply only to fowls, may it not be necessary to insert a word such as "also" after "fowl"? There is no ambiguity at present that I can see, but there might conceivably be ambiguity if this Amendment is accepted. I wonder what the noble and learned Lord thinks about that.

LORD BALERNO

I should like to support the Amendment of my noble friend Lord Nugent of Guildford. There is justification in including domestic pheasants or partridges, just as there is justification for including domestic quail. There are farms which raise these as domestic animals, as distinct from birds that remain completely feral. I wonder whether consideration might be given to the possibility of including not only quail, but also peacocks. They are domesticated as a rule. To my mind, they are rather horrible animals, but I think they should be protected in this way.

THE LORD CHANCELLOR

I think the word "domestic" applies only to fowls. I cannot think there is any case at all for including pheasants or partridges or any of the others, so far as the cattle trespass clauses are concerned, or so far as straying on to highways is concerned. With regard to dogs worrying livestock, pheasants and partridges are not normally domestic birds; in fact until they are caught or killed they are not and cannot ordinarily be the subject of ownership. If such birds are killed or injured by a dog nobody suffers loss as owner of the birds and, therefore, no damages can be claimed. I concede that there is a perfectly fair point with regard to pheasants and partridges in pens. Once they are out and flying about they are nobody's property; they are living in a wild state, and there is no need to apply this.

So far as Clauses 3 and 9 are concerned —dogs worrying poultry—I agree that there is a case for seeing whether those in pens should not be included. I am quite prepared to discuss with the Ministry of Agriculture whether it is possible to distinguish between those in pens and others—I do not see why not —and I should think that, if it can be done, there is a case for covering them. With regard to quails and peacocks, if I may I will consider them between this stage of the Bill and Report stage.

LORD NUGENT OF GUILDFORD

May I thank the noble and learned Lord the Lord Chancellor for his accommodating reception of the Amendment, and for including the other birds that have been rustled up for inclusion as well. We look forward to seeing what he can produce on Report stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 agreed to.

Clause 13 [Short title, repeal, commencement and extent]:>

5.52 p.m.

LORD NUGENT OF GUILDFORD moved Amendment No. 24:

Page 7, line 34, at end insert— ("( ) If the damages claimed under section 3 of this Act do not exceed £25, they may be recovered summarily as a civil debt.")

The noble Lord said: I beg to move Amendment No. 24 in the name of the noble Lord, Lord Henley, and myself. This is a small point which I think deserves attention. Clause 13 of this Bill repeals subsections (1) to (3) of Section 1 of the Dogs Act 1906. But subsection (3) of Section 1 of the 1906 Act provides a very useful remedy for the owner of livestock damaged by a dog. It reads as follows: If the damages claimed under this section do not exceed £5 they may be recovered under the Summary Jurisdiction Acts as a civil debt. That means that they may be recovered by the aggrieved owner's taking action in a magistrates' court, which is very cheap and simple and involves no delay. I believe that this has been a remedy that has been much appreciated. My Amendment seeks to restore this provision to the Bill now, and to make an upward revision of the limit of the amount recoverable from £5 to £25. As the amount of £5 was fixed as right in 1906, I think that a multiplication of five is probably about right to set it at the same level. At that level it would undoubtedly provide a simple remedy where unfortunate incidents of this kind occur. I beg to move.

THE LORD CHANCELLOR

My Lords, having been so accommodating throughout, it would have been nice if, on the last Amendment, I could have accepted what is proposed. But it would really break my heart to do so. For five years I have been trying, with the cooperation of successive Home Secretaries, to reduce chaos to order. Surely the most elementary factor about any system of justice is that one must be clear what is a criminal offence and what is a tort; and there are criminal courts and civil courts. In the haphazard way in which our law has grown up, a Minister has from time to time (I suppose when the Lord Chancellor was having influenza, or something of that kind) had a provision put through which put something to be dealt with in quite the wrong court. The Dogs Act did this in 1906. There is, of course, a liability to pay for the damage which the dog has done, but this is a purely civil claim. It is a claim by the owner of the livestock against the owner of the dog.

We were trying to deal with such matters only last Session. We started, for example, getting out of magistrates' courts the effects of the Small Tenants Recovery Act, which, as the noble Lord, Lord Conesford, may remember, provides that one can obtain possession of very small houses in what used to be called a police court. This was obviously wrong, and we are in process of getting that matter out of the magistrates' court and into the county court, where it obviously ought to be. So, too, should a claim for damages.

There are further sensible reasons for this. The claim may raise issues of law, such as questions of ownership. The tri- bunal of magistrates, unless there happens to be a farmer sitting, is ill qualified to assess damages, whereas the county court registrar has expertise and facilities for the collection of judgment debts by the making of instalment orders, administration orders and so on, which are lacking in the magistrates' court. It may be that in 1906, when there was not the amount of crime that exists to-day, one could get a case heard very much sooner in a magistrates' court than in a county court. But to-day the magistrates in most districts are already overloaded with criminal work, which should be given priority, and the registrars of the county courts are not so heavily pressed.

For these reasons, I hope that the noble Lord, Lord Nugent of Guildford, will not press this Amendment. It is not a matter of mere administrative tidiness; it is really not right that a claim for damages should, in this year, be put into the criminal court. Also, as I have said, there are good practical reasons why a civil court is appropriate.

LORD NUGENT OF GUILDFORD

I thank the noble and learned Lord for his reply to my Amendment. I am bound to recognise that it is cogent. I have in the past sat on a local magistrates' bench, and occasionally, not this particular type of action but one or two types of action of a civil kind have been brought before us; and as a rule such cases throw a magistrates' bench into considerable confusion. I must recognise that they are not particularly well qualified for dealing with matters of this kind. I recognise the principle that magistrates' courts are there to deal with petty crime, and that this is a civil action. I should be the last person to press the noble and learned Lord on something where I feel he is certainly right in principle. Although I felt that this was a useful little practical solution, I also agree that delays in the county court are not very serious nowadays, while there might well be a delay with a magistrates' court. Therefore I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

House resumed: Bill reported, with the Amendments.