HL Deb 17 January 1979 vol 397 cc1118-44

10.42 p.m.

Lord NORTHFIELD

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

Moved, that the House do now resolve itself into Committee.—(Lord Northfield.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ALPORT in the Chair.]

Clause 1 [Close seasons and nightly close times]:

Viscount THURSO moved Amendment No. 1: Page 2, line 29, leave out ("he satisfies the court before which he is charged that").

The noble Viscount said: This Amendment along with my later Amendments Nos. 3, 4 and 5 are really all about the same subject; namely, the matter which I raised in your Lordships' House on Second Reading and when the previous Deer Bill went through its stages in this House. I am referring to the necessity to write into the Bill that an innocent person should prove his innocence before a court of law. I realise the argument that will be adduced in this connection, such as this is a legal form of words which is often used and a legal form which is necessary. However, none of those arguments mitigates for me my repugnance at the thought that somebody going about their lawful occasions should have to go before a court and prove his innocence.

I know that we all know of cases where two motorists have banged into each other on the road and they are both furious at each being charged with the same offence and so on. I know that in many facets of law, if an offence appears to have been committed it is necessary to answer before the court. But in this instance I do not see that it is necessary to make the person who has performed the action commit the offence. If we remove from the offence the exception, then no offence would have been committed. In other words, if we leave out the words: he satisfies the court before which he is charged that it means that: A person shall not be guilty of an offence under subsection (1) above by reason of—

  1. (a) the taking or killing of any deer… if he was an authorised person; and he had reasonable grounds … and … it was likely that further damage would be so caused … and his action was necessary for the purpose of preventing any such damage".
Therefore, it makes clear to the police, who have the duty of taking the case to the court, the factors which would make the farmer, or the person who has had to kill the deer in order to stop the marauding of crops, innocent of the offence. It allows the police to assess the situation before they take him to court; they do not have to take him to court merely in order to discover whether or not he was an authorised person and all these other factors applied. Therefore I have put down this Amendment. I beg to move.

Lord NORTHFIELD

The noble Viscount, Lord Thurso, has been very reasonable about this and I hope that at least to a small extent at the end of what I shall say he will be pleased. However, first, I want to deal with the exact point he is making. I hope that we can discuss together Amendments Nos. 1, 3, 4 and 7, which are all about the use of these words. If the noble Viscount is agreeable, perhaps we could deal with those four Amendments together. I think that he was mistaken in suggesting Amendment No. 5 as well.

Viscount THURSO

Yes, I should be happy to deal with all those Amendments together. Clearly, Amendment No. 4 deals with the case in which I have been persuaded that the other two Amendments should be withdrawn, that the wording should stand, and that there has therefore been an omission at a later stage. So I should be happy to deal with it in that way.

Lord NORTHFIELD

I am much obliged to the noble Viscount. The first point I would make is that Amendment No. 4 is in any case defective; in other words, if it were to be accepted in principle, it is wrong. It should read: if he satisfies the court before which he is charged that he was", not that he "is". Therefore, on that ground alone I think that the noble Viscount would need to withdraw the Amendment.

More importantly, let me come to the principle. The noble Viscount said on Second Reading that he objected to the onus being on the defendant to prove his innocence when he was going about his business in a perfectly lawful way. Let us look at what is happening. First, let us take Amendment No. 1. What is the offence? The offence is the shooting of a deer during the close season. In every sense the onus will be on the prosecution to prove that that offence took place; the onus will not pass to the defence. The prosecution will have to prove that that offence—as in every other offence in law—was actually committed and that a deer was shot in the close season by Mr. A.

But as with many other offences, certainly in English law—I am not an expert on Scottish law and I think that the noble Viscount probably is—we then get a situation where an offence being clear in that sense, certain statutory defences are nevertheless prescribed by Act of Parliament. That is precisely what this clause as drafted sets out to do; it sets out to give the man who has prima facie committed this offence four statutory defences which he can call in aid to say that nevertheless he shall not be punished. Therefore, in that sense it is not turning normal English procedure upside down. It is, in fact, on all fours with many other Acts of this kind. I am glad to recall that the noble Earl, Lord Mansfield, mentioned this point to the noble Viscount on Second Reading.

If the noble Viscount were to press me, I would say that if it would satisfy him that the words should be there—and I shall come to further reasons why they should be there in a moment—then he is quite right in saying that we ought to accept a modified version, a corrected version of his Amendment No. 4. Those words, if they are in Clause 1, ought to be present at the very top of page 4 where he says they have been missed out. If he wishes, and if he is satisfied by my explanations, we would certainly insert at Report stage a phrase to make the whole thing consistent.

Let us look at a further point why the words in any case could not, in order to meet him, be withdrawn. The final test of whether the statutory defences hold water or not is before a court. It must be up to the defence to take advantage of them because some of the defences are things that the prosecution could not prove the contrary of. If my language is getting rather convoluted, I hope the noble Viscount will understand what I am saying. In other words, the onus must be on the defence in the case of subparagraph (ii) at the bottom of page 2. It is only he, the defendant, who can show that he had reasonable grounds for believing that the deer of this kind had been causing damage. You cannot expect the prosecution to prove that he had no grounds for the contrary. It has to be the onus on the defence in this case to take advantage of the statutory defence.

I hope those words satisfy the noble Viscount. I understand his antipathy to words which make people look a little guilty when they really only are talking about statutory defence. If it would help him, and if he would withdraw his Amendments, J should certainly agree to talk with him before the Report stage, and perhaps with the Parliamentary counsel or officials who have been so kind in helping to draft this Bill, to see whether we can convince him. If we were to convince him that the words were necessary, at Report I would certainly accept a modified version of his Amendment No. 4.

10.53 p.m.

The Earl of MANSFIELD

I am bound to say that I have a certain sympathy with the noble Viscount, Lord Thurso, when he sees to it, as he thinks, that for any prosecution in the future he is not making things easier than they have to be. I am talking in layman's language now, if not baby language. I share that view. I do not believe, certainly under the English system of law, that the burden of proof, which normally rests on the prosecution throughout the case, should be mitigated in any way, unless certain conditions apply so that it is in fact necessary and desirable that the prosecution in effect is alleviated from the heavy burden of proof which it normally carries.

What do we have here? As the noble Lord, Lord Northfield, correctly says, the prosecution have to prove the offence, and prove it strictly, as they do with all, or nearly all, offences in our criminal law. The difficulty arises when you create a defence. If I am at variance with the noble Lord, there are not four defences here; there is one defence containing four limbs, and the allegedly errant farmer will have to prove all four limbs if he is to be acquitted at the end of the trial.

The noble Lord is right in saying that there are matters which the prosecution cannot know that are, or were, in the mind of the farmer, or whoever is the occupier of the land, when he takes the action he does. To that extent it must be for the defence to put those facts before the court. The difficulty arises as to what sort of burden is going to be on the defendant when he puts them before the court. Is it like, for instance, in the case of murder where the Crown has to prove, in effect, that the defendant when he caused the death of the victim either intended to kill him or at least to cause him really serious bodily harm? The defendant may say, "I never intended to kill him. I never intended, when I shot a gun in the direction of this person, even to wound him but simply to frighten him off my property"; and, in those circumstances, the defendant will say, that it is not murder but, at the most, manslaughter. In those cases the burden is still on the Crown to disprove the assertion by the defendant that what he intended was fright and not death or serious bodily injury.

I have strayed rather far from the rustic scene when the death of a deer is caused, but, as I said on Second Reading, I think the noble Viscount, Lord Thurso, is a little too worried about this. If one takes a practical situation, and one must—if a farmer or occupier is acting reasonably in the defence of his crops—I do not believe it would be difficult for him (or so difficult for him that an injustice may be caused) to go through the four limbs which provide his statutory defence under subsection (7). A person acting reasonably and honestly—which is really what is being said in precise and legal terms under these four heads—would, I believe, be acquitted and I think he would find no difficulty.

It is no good trying to tinker with the words of the clause. The provision is perfectly satisfactory. It makes good legal sense; it simply throws the burden of proof—only on the balance of probabilities; not beyond reasonable doubt—on to a defendant in a certain instance. If one tries to tinker with it, the cure would be far worse than the disease.

10.57 p.m.

Lord DULVERTON

I rise only to express sympathy for the noble Viscount, Lord Thurso, in his reasons for moving the Amendment. Prima facie, in reading it one would be persuaded it was reasonable, but having heard the exposition of the noble Lord, Lord Northfield, and the erudite exposition of my noble friend, I hope the noble Viscount will feel as satisfied as I feel that there is no good reason in effect for trying to alter the words of the clause as drafted. I believe I am right in saying that, although it might seem implicit in the words used in the clause that any farmer defending his crops would of necessity be brought before a court to prove he really was a farmer and really was defending his crops, that is not the case. This is a form of words often used nowadays in English law covering statutory defences and the police are unlikely to pursue a prosecution and bring it before the court if they themselves do not have very good reason to suppose that the four excuses set down are not able to be sustained by the man who is alleged to have committed the offence. I hope the noble Viscount may feel persuaded, however much sympathy we may all feel with his intention in moving the Amendment, to withdraw it.

Viscount THURSO

I am grateful to the Committee for the wave of sympathy which has come towards me, and I am to a large extent comforted by it, and by the help which noble Lords have given me in feeling this is so. I should like to take up the noble Lord, Lord Northfield, on his generous offer to discuss this matter again before Report stage, if I am to capitulate immediately on these Amendments, as I feel inclined to do. It is late at night. I might feel tempted to go on and press certain aspects of the matter, but I do not think that I should. I am taking up the noble Lord, Lord Northfield, on his kind suggestion, and I ask leave to withdraw the Amendment.

Amendment, by leave, withdraw.

Clause 1 agreed to.

Clause 2 [Prohibited firearms and ammunition]:

11.1 p.m.

Lord NORTHFIELD moved Amendment No. 2: Page 3, line 28, at end insert ("(that is, shot commonly known as "AAA ") ").

The noble Lord said: With your Lordships' permission, I also wish to speak to Amendment No. 6. The shot technically described in the text of the Bill at line 28 on page 3 is more commonly known as "AAA". Therefore, it was felt advisable to insert that common name in the text of the Bill. Thus this is purely a drafting Amendment. However, with regard to Amendment No. 6, upon reflection it has been found not appropriate to insert the common term at that point, and so I do not propose to move that Amendment. I beg to move.

On Question, Amendment agreed to.

[Amendments Nos. 3 to 7 not moved.]

Lord NORTHFIELD moved Amendment No. 8: Page 4, line 10, after ("Minister") insert ("and the Minister of Agriculture, Fisheries and Food, acting jointly").

The noble Lord said: I can speak about this matter briefly because it was dealt with at considerable length on Second Reading. The National Farmers' Union, which has reached agreement with me and my advisers on the Bill, has all the time insisted that it would like the Minister of Agriculture, Fisheries and Food to have joint powers effectively with the Home Office in relation to any orders to be made regarding weapons to be used on deer. The Minister at the Home Office exchanged correspondence with me at the time, which I read out at Second Reading. First, there is a pledge in the correspondence that the Minister in any case will not use any of the powers until an inter-departmental committee, which is to be set up after the Bill becomes law, has reported. Therefore, the point there is that there is one safeguard in writing.

There is a second safeguard, which of course I know about, that throughout the Bill it is made clear that if any orders are made under the Bill, the Home Office would be enjoined to consult widely, and that would include consulting other Ministries for their views. Nevertheless, having said all that, I fully accept the National Farmers' Union's point of view that this is the farmers' Minister, that this is a matter affecting them, and that he more fully understands their point of view on what weapons are appropriate and on how quickly they may be phased out, if that was the issue at stake. Therefore, they feel that their Minister should be the one upon whom they could lean and to whom they could put their views, and that he might more readily understand their point of view than would the Home Office acting alone. I gave this pledge and I gave it honestly, and I am delighted that the noble Lord, Lord Stanley of Alderley, has added his name to the Amendment because he has been foremost in expressing the strength of this view on the need for this joint power. As I say, I covered this question in great detail at Second Reading, and I therefore hope that the Committee will forgive me if I develop it no further tonight. I am carrying out a pledge. I beg to move.

The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of HEALTH and SOCIAL SECURITY (Lord Wells-Pestell)

I am sorry to introduce what may well appear to be a discordant note at this stage in the proceedings. I will deal with it as briefly as I possibley can because I have a very full note on this, but I am not unmindful of the discussion which took place on the previous occasion. I can assure your Lordships that this provision would make it inconceivable that the Secretary of State should make an order under Clause 2(5) without consulting both the Minister of Agriculture and the National Farmers' Union. Both bodies represent, in the words of the Bill, persons likely to be interested in or affected by such an order, and I believe that the Secretary of State would be in breach of his statutory duty if he failed to consult them.

In the second place, I would remind your Lordships that the Government have given an undertaking to put in hand an inter-Departmental review of deer when this Bill reaches the Statute Book. The review would examine the position of deer in England, Wales and Northern Ireland, with particular reference to the aspects subject to legislative control. An assurance has been given to my noble friend Lord Northfield, and was made public by him during the Second Reading debate last month, that no attempt would be made to phase out the shotgun or otherwise to use the powers we are considering here before the review had been completed and the conclusions known. The exact membership of the review body, its parent Department and its terms of reference have yet to be decided, but it is certain that farming interests will be fully represented and will thus be involved in a consideration of the shotgun problem from the very beginning.

The third point I want to make is that the Amendment does not mention either the Secretary of State for Wales or the Department for Agriculture in Northern Ireland, both of which exercise functions exercised by the Minister of Agriculture, Fisheries and Food in England. An Amendment incorporating the appropriate reference would be of some complexity in itself, as well as requiring further consequential Amendments to Clause 17. I think this third point which I am making on behalf of the Government is a very valid one, and I say with the greatest possible respect that I do not think the present Amendment before your Lordships could be considered or accepted in its present form when, as I say, there are other people acting on behalf of the Minister of Agriculture, Fisheries and Food outside England itself. I think it would have to be more embracing, and it may well become much more cumbersome.

I would, therefore, ask my noble friend Lord Northfield if he would feel able not to press this Amendment at this stage. We have another stage, the Report stage, and it may well be that we ought to get together on this matter afresh and look at it again, if my noble friend and noble Lords feel that there ought to be something along these lines in the Bill before us. Meanwhile, in view of what I have said I hope that my noble friend will feel able not to proceed with this Amendment at this stage.

The Earl of MANSFIELD

I wonder whether I may ask the noble Lord, Lord Wells-Pestell, this question while the noble Lord, Lord Northfield, is considering his position. Of course, nobody would seek even to smile at the noble Lord's undertaking that this Government will do this, that or the other in the future as soon as this Bill becomes law—and, knowing the tenacious way in which this Government cling on to power, it may well be that they can give this sort of assurance. But everything in this world is transient. I wonder how much validity such an assurance has at this late stage of a Parliament's life. What I want to ask the noble Lord is this, and it is more serious: if the noble Lord, Lord Northfield, decides to withdraw his Amendment at this stage—it is something which I know does cause a lot of feeling, as have many matters in this Bill, and it would be a great shame if this little point were to sink the Bill (I say that not as a threat, for I have nothing to do with it, but I am beginning to have maternal feelings about this Bill)—can he give an undertaking between this stage and the next that the noble Lord and his Department will give advice as to how the Amendment may be made more satisfactory in form, both as to this clause and as to the consequential Amendments which the noble Lord has talked about? In other words, will he give his blessing in spirit at least to the Amendment so that we shall know when the Report stage of the Bill comes about that we will not have any more dissension as between the supporters of the Bill and any other vested interest?

Viscount THURSO

I should like to support what the noble Earl, Lord Mansfield, has said. I do not think that we should back off from this Amendment. I think the whole of your Lordships' Committee would want to see something of this sort included in the Bill. I am not entirely sure that the fact that the Secretary of State for Wales or the Minister for the Department of Agriculture in Northern Ireland exercises certain powers which reside principally with the Minister of Agriculture in the Government really has any bearing on this matter. There is no separate Welsh legislation on deer that I know of. Nor, to my knowledge, is there any separate legislation on deer in Northern Ireland. Therefore, I think it would be appropriate to appoint anybody one wished to appoint at this stage to be consulted before any change is made in the deer legislation.

Lord WELLS-PESTELL

May I reply to the noble Earl, Lord Mansfield, that at every possible stage the Government have given every assistance so far as this Bill is concerned. I think my noble friend Lord Northfield would say that he could not have had more help than he has had from the appropriate Government Department, the Home Office, on this particular Bill. There is no intention, no desire, whatever on the part of the Department and the Government to sabotage this Bill in any way. What we want to do is to have—

The Earl of MANSFIELD

I never implied, let alone alleged, that there was. I merely asked for an indication of future expressions of help and that they would be in material form.

Lord WELLS-PESTELL

The Department involved is always willing, so far as this Bill is concerned, to give every possible help. All I am saying is that, as it is worded, we see certain difficulties. I think I indicated that perhaps those who are involved (including the noble Earl, if he is in town) could discuss it to see whether we could find a more satisfactory wording. If we cannot do so, then the House will have to decide. It is as simple as that.

Lord STANLEY of ALDERLEY

I think I had better say something now, first, to thank the noble Lord, Lord Northfield, for allowing me to put my name down with his to this Amendment. There have been occasions in the past, and no doubt there will be others in the future, when we have not entirely agreed on everything. If the noble Lord, Lord Northfield, and I can agree on something—which is, perhaps, slightly unusual—then perhaps the noble Lord, Lord Wells-Pestell, must agree that we must have something of importance here. I think that the noble Lord, Lord Wells-Pestell, started from the wrong village, if I may say so. I would have started by saying that it is the Minister of Agriculture who in fact should make these decisions. This is an entirely agricultural decision to take. I do not think that there is a single member of the Committee who would disagree with this. Therefore my logic says that it must be the Minister of Agriculture.

I say that I have already given in to a vast extent by accepting that the Home Secretary should be there at all. We have both started from a different end of the pitch on this matter. It is very important, and I do not think that the noble Lord has quite grasped that the motive for changing the type of weapon to be used or indeed repealing entirely Clause 2(3) (which is the clause he is going to be able to repeal) is an agricultural one. Finally, I must say that last time we dillied and dallied over this Bill and failed to grasp the nettle at Committee. As a result, it went on and on until, as I told the noble Lord, Lord Wells-Pestell—and I am afraid I am not being very nice to him again tonight—we had a wrecking Amendment by the Government at Third Reading, which was too late. My feeling is that if your Lordships will support me, this Amendment should be agreed to tonight.

After we have pressed this Amendment, if the noble Lord feels that there is a better way to bring in the Secretary of State for Wales, or whatever, then he has a chance to do so at Report stage. I do not feel like withdrawing this Amendment and hedging the issue. It is an important Amendment and I feel strongly about it, and I hope that the Committee feel that way.

11.18 p.m.

Lord DULVERTON

I regret taking issue with the noble Lord, Lord Wells-Pestell, who has been extremely helpful over this Bill in its many stages. I must add a brief word to those expressed by my noble friend because I know how strongly and deeply the National Farmers' Union of England feels on this issue. As my noble friend has explained, the presence of deer as a possible destroyer of crops but also as a foodstuff in themselves is surely an agricultural matter. I well understand that it is the Home Secretary's Department which has to regulate the issue of firearms certificates, gun licences and so on, but it is much more an agricultural matter. The fact that we have to think about other Ministries in Wales and Northern Ireland is not all that important. By far the biggest deer population that we are talking about is in England. There is a very small deer population in Wales. I do not know about Northern Ireland, but I do not think it would be very big there either.

I should like to put one other point to the noble Lord opposite. He said that of course it would be inconceivable that, when the inquiry which is being set up came to its conclusions and before promulgating its conclusions, the Minister of Agriculture would not be consulted. One would assume that to be the case but I must quote a particular instance that happened recently within my own knowledge which leads one to doubt whether one can always rely on the proper consultation taking place. As noble Lords from Scotland will know, in the past months there was a case in Orkney where somebody wanted to set up a mink farm next door to one of the most important wildfowl nesting sites in the whole of Europe. The Secretary of State for Scotland has a duty to consult the Nature Conservancy Council on any matter which might affect nature conservation, and that slipped. He gave planning permission for this particular planning case where the mink farm was to be set up. It led to a terrible lot of trouble afterwards to unravel the situation created purely by inadvertence. It has happened once; it could happen again. I hope that the noble Lord, Lord Wells-Pestell, will, if pressed to do so, accept the Amendment which the noble Lord, Lord Northfield, has put foward.

Lord BURTON

Could I also add to that our grateful thanks to the noble Lord, Lord Wells-Pestell, for the help which he has given, and convey regret that on this occasion one might wish to differ from him. May I remind him that not so very long ago there was a case in which we got a categoric assurance from the Minister—and the House accepted it—that on a certain point this was the intention of the House and the intention of the Government. The matter then came before the Land Court, and they said, "We are not interested in what the Minister said, but only in what is in the Bill". I am afraid this is a case where we shall have to go by what is written in the Bill and not by the intention of the present Minister—we admire him, but we must have it actually written down in the Bill, because a court has already ruled that a Minister's undertaking is not sufficient.

Lord NORTHFIELD

I must first thank my noble friend. We have omitted to say to him previously how pleased we are to see him at the Despatch Box after his recent promotion inside the Government. I understand he would not normally be dealing with this Bill now that he has other duties, but that he kindly volunteered to continue with it because of his connection with this during the last Session. The fact of our having kept him so late this evening is very poor thanks for his courtesy. But we do congratulate him and are sorry that on future Bills of this kind we shall not have the benefit of his charm and sympathy in dealing with them.

Having said that, I have to say to him that I feel my honour is at stake in this matter. I have given my pledges to the National Farmer's Union on this matter, and I join with the noble Lord, Lord Stanley, despite what the noble Earl, Lord Mansfield said. I feel that the better plan at this stage would be for me to carry out the pledge I have honestly given, to write this into the Bill and then, if it needs to be extended or expanded at Report stage, that is the proper thing to do. I am sure it would not upset officials at the Home Office, or the Ministers. I would say yet again, as my noble friend said, that they have been of inestimable help in the re-drafting of this Bill, and I am sure that the little irritant of our proceeding, as they might think, a little hot-headedly on this matter, will not upset them. I do not think it will upset their sympathy if we ask them to look at it when we have done our dirty work at this stage and put this into the Bill. So in these circumstances I feel I must press the Amendment.

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Removal etc. of live deer]:

Lord NORTHFIELD moved Amendment No. 9: Page 5, line 22, leave out ("removes") and insert ("takes and carries away").

The noble Lord said: I beg to move this Amendment, which is a drafting Amendment. The word "removes" may not indicate the precise intention at this point. It is best to imply that the animal is being transported from one place to another. The phrase "takes and carries away" is in other Acts of Parliament, and I suggest that to use it here makes the matter absolutely clear. I beg to move.

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Exceptions to sections 1 to 4]:

Lord NORTHFIELD moved Amendment No. 10: Page 6, line 19, leave out from ("on") to ("acting") in line 21 and insert ("any Minister of the Crown, or on two or more Ministers of the Crown").

The noble Lord said: I beg to move this Amendment. It is technical and is designed simply to take account of the fact that the Secretary of State for Wales now has powers under the Acts mentioned in Clause 5(5)(a) in respect of Wales. In that sense, it is purely a drafting Amendment. I beg to move.

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Clause 7 [Prevention of poaching]:

11.25 p.m.

On Question, Whether Clause 7 shall stand part of the Bill?

The Earl of MANSFIELD

I hesitate at this hour of the night to inflict upon your Lordships a matter which is not the subject of an Amendment, but I do so consequential upon remarks which I made on Second Reading upon a matter which I think is important and believe noble Lords may think is important. I do so in order that the matter is ventilated, and also to give the Minister, the noble Lord, Lord Wells-Pestell, the opportunity to pronounce upon my worries if he feels that they are worth pronouncing upon.

The matter is this. Clause 7, which has been the subject of a great deal of controversy before now, is, in effect, the clause which deals with the prevention of poaching in one form or another. In particular, it stops people from trespassing on land with the intention of pursuing, taking, killing or, indeed, injuring deer. Thus far the matter is entirely sensible, if I may so call it, and, I should have thought, non-controversial. The difficulty comes when one considers the people who may find themselves at the wrong end of a criminal court, for a course of action which until now could never have landed them in a criminal court, and which, at the most, could only have made them liable to an injunction restraining them from trespass—a civil matter.

Let me illustrate it in this way. If staghounds go on to land which is in the ownership of somebody else, and he objects and, as it were, notifies the hunt of that objection and they repeat the action, then, at least, the organisers of the hunt will be in peril of a prosecution under Clause 7. I think that that is incontrovertible. I want to say especially to those behind me that I am not a hunting man, and if I betray abysmal ignorance I hope that they will be reasonably kind to me. But let us take now somebody who is following a hunt and enjoys himself on a horse or possibly on foot, certainly in the case of foxes, and it may be—I do not know—in the case of staghounds. Such people run along in the countryside as best they can, enjoying themselves more as spectators than taking part in the hunt.

If the hunt goes on to land—in fact, trespasses—what is the position if that land is owned specifically by anti-stag-hound organisations which have bought the land in order to exclude a hunt? I can see that in those circumstances the hunt servants would stand to be prosecuted and, in the ordinary course of events, would have no defence, or, at any rate, would not have the defence under subsection (3). But what is the position of a less resolute person who, perhaps, is not a member of the hunt and is cantering along on his horse, enjoying the scenery, and suddenly finds himself surrounded by outraged owners or occupiers, who say: "You are trespassing in a way which brings you within the ambit of criminal law", when he would not have the slightest idea of where he was or what he was doing? One can take that still further. What is the position of somebody on foot? Can they avail themselves of subsection (3)? The next question one asks is whether it is right and fair that they should be put in a court and forced to do that.

Lord NORTHFIELD

The noble Earl keeps on referring to subsection (3), but if he speaks about somebody cantering along on a horse, the effective subsection is subsection (1). The prosecution would have to prove that he was doing all this with the intention of taking and killing deer as a poacher.

The Earl of MANSFIELD

I do not wish to be rude to the noble Lord, but the charge would say that X, the master, and Y, the huntsman, were guilty under Clause 7 and that the hunt followers, the et ceteras and the people on foot were aiding and abetting.

Lord NORTHFIELD

I understand.

The Earl of MANSFIELD

I have tried to compress my remarks because it is late at night and I do not wish to go into the technicalities of it. Of course Aunt Enid, bucketing along on her horse, would not know how to touch a deer if she caught up with it and would be horrified at the thought of it, but she would be guilty of aiding and abetting those who wished to kill it. That is one situation, and I am slightly disturbed by it.

The other situation—again I have no personal experience of it but one reads about it from time to time in the newspapers—is where these hunts get much nearer to conurbations than they probably want to and end up by having a most ferocious bloodbath in somebody's suburban corner, with the wretched creature which is being hunted at bay among the geraniums and an outraged householder watching the slaughter. In these circumstances, it seems to me that everybody who went into that suburban garden would be liable to be found guilty under Clause 7. They could not possibly avail themselves of subsection (3) because they could never go into a court and say, "I ran after the hounds. I didn't know whether I was going to try to whip them off or try to kill the stag with my sawn-off shotgun, but I had to get into that garden after my pack of hounds. Of course I didn't think that the occupier of the land would approve. He obviously didn't". This is what worries me.

At present, the householder is perfectly entitled to take out a writ and obtain an injunction. If anybody comes back on to his land in those circumstances, he finds that he is liable to go in front of a High Court judge, and possibly he will go to prison. Under this clause of the Bill, however, he could, as I say, find himself in the dock of a magistrates' court. None of this would matter very much if the Scottish system obtained, where prosecutions could be initiated only by a procurator-fiscal, because he would see to it that, if it was a mistake and nobody had acted unreasonably, that it was not negligent, that it was a case of sheer bad luck and that Aunt Enid did not know what she was doing when she was found by an outraged householder, it was all right. But what worries me is that these prosecutions can be initiated in England by anybody on a private basis. I hope that the noble Lord, Lord Wells-Pestell, will confirm that this is the case and that I am not talking nonsense, because if I am and a prosecution cannot be initiated privately, then I shall rest a good deal more content. Those are my worries. I wanted to air them and I am sorry that I have taken so long to do it.

Lord BURTON

May I ask my noble friend one question? I understand his worry and fully appreciate and understand it. However, would it not be a defence, if hounds were running on to ground where they were not allowed to go, if somebody, whether a hunt servant or otherwise who was pursuing them, were to say, "I was after them and trying to stop them"? If the hounds run on you cannot stop them without getting ahead of them to stop them. Would not this be a defence?

The Earl of MANSFIELD

It is not for me to answer these questions, but I would say, Yes, it was, because then the person would not be entering land with the intent of taking, killing or injuring deer. He would be entering land with the intent of whipping off his hounds. But that is not the situation which I have postulated.

Lord WELLS-PESTELL

Having listened to the noble Earl, I feel personally that it would be very unwise of me to attempt to give an authoritative opinion tonight. If your Lordships will allow me, I should prefer to look very carefully tomorrow at Hansard together with my advisers. I have a great respect for the legal knowledge and ability of the noble Earl and he would not have raised these matters unless he was very much exercised in his mind about them. The fact that he has raised them causes me to say that I do not want to attempt to answer them tonight. As I have said, I should like to look at Hansard tomorrow with my advisers and then to write to the noble Earl. There will be ample time for him to do something before the Report stage if he feels it incumbent upon himself to do so, and I would be happy to send a copy of that letter to my noble friend Lord Northfield and to certain other noble Lords who have tabled Amendments and have spoken tonight.

Clause 7 agreed to.

Clause 8 agreed to.

Clause 9 [Offender may be required to quit land]:

11.36 p.m.

Lord NORTHFIELD moved Amendment No. 11:

Page 8, line 3, at end insert— ("(5) This section shall not empower a constable in Northern Ireland to exercise any powers in connection with an offence or suspected offence under section 7 above except in the circumstances mentioned in the exception to the proviso to section 15 of the Constabulary (Ireland) Act 1836 (that is to say, where forcible resistance is actually made and proved by information on oath).").

The noble Lord said: The word "constable" is used in the Bill and so the Amendment has to be made in respect of laws about constables in Northern Ireland. In that sense it is purely technical and does not alter the sense of the Bill. It is a drafting Amendment. I beg to move.

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 agreed to.

Clause 11 [Sale and purchase etc. of venison]:

Viscount THURSO moved Amendment No. 12: Page 8, line 14, at end insert ("or a venison dealer registered under the Sale of Venison (Scotland) Act 1968 ").

The noble Viscount said: At this late hour I do not want to speak for too long about this Amendment. If your Lordships agree I will speak also to Amendment No. 13, because both Amendments are virtually the same and deal with the same subject. I have a genuine worry about the status of venison dealers round about the Border between England and Scotland where there are two types of people dealing in the same commodity, keeping different types of records and working under different legislation. I feel that this situation has to be resolved.

I am probably not going to press these particular Amendments, but I should like an assurance before I withdraw them, that perhaps there could be some sort of consultation about this matter to make sure that the situation and the trade across the Border is properly regulated and that in fact venison dealers from either side of the Border can operate properly without any unnecessary hindrance. I beg to move.

Lord NORTHFIELD

I am grateful for what the noble Viscount has said and of course I am willing to talk to him, but I want to make it clear that there would not be any possibility of accepting these Amendments. The reason is simply that the Amendments would allow a venison dealer registered in Scotland to operate in England. This would be very dangerous, for this reason: the venison dealer in Scotland is a man who is registered by local authorities; he cannot be refused registration and there is very little control over him, as I understand the position. The records he keeps fall far short of those specified in the Bill; moreover, any records he keeps cannot be inspected by the police.

If an unscrupulous person wished to avoid the intention of the Bill, namely, scrupulous checking on the origin of deer, he could effectively get himself registered as a dealer in Scotland and then operate in the North of England, where the police would not be able to inspect his records; the records would not be complete enough. He could be a poacher just using this in a most reprehensible way in order to get round the sale of his venison. The way a reputable venison dealer in Scotland can get round the problem legitimately and properly is simply to get himself registered at a cost of £4.25 as an English dealer under the terms of the Act, and he is then perfectly entitled to sell his venison in England. But of course there he would be subject to greater checks; the police would be able to make sure exactly what he was doing. To accept the Amendment would be to open a door to unscrupulousness by those seeking such open doors. I am willing to talk to the noble Viscount but I must make it clear that the Amendment is not acceptable.

Lord BURTON

May I add that the noble Viscount, having been on the Red Deer Commission, will be fully aware that registering of venison dealers in Scotland is totally unsatisfactory at the moment. Indeed, only yesterday I was trying to compete with a well known poacher who has a licence and is collecting venison from other people poaching and dealing in it. It is a most unsatisfactory situation and already badly needs amending in Scotland. To proliferate it into England would be a complete mistake.

Viscount THURSO

I cannot say that I accept either of these points of view. I am absolutely horrified at the slur on the honesty of Scottish local authorities, to think that they could be used by any old poacher from England to obtain a venison licence. I think that is a terrible slur. I am sure the noble Lord, Lord Northfield, did not really mean it like that, but it came out slightly like that. I certainly do not agree that the Sale of Venison (Scotland) Act has not been a success. In fact within the area in which it was supposed to be used it has been a success. I do not want to go into that at this late stage. I do accept Lord Northfield's invitation to talk on this, mainly because the time is getting later and later and I am already in hot water for having forecast that this debate would take a much shorter time than it is taking. Therefore, with your Lordships' leave, I will withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clauses 12 to 18 agreed to.

Clause 19 [Short title, repeals, extent and commencement]:

11.43 p.m.

Lord NORTHFIELD moved Amendment No. 14:

Page 14, leave out line 10 and insert— (" (4) This Act, with the exception of Part II, shall come into force at the expiry of three months beginning with the date of its passing, and Part II shall come into force on 1st November 1979.").

The noble Lord said: The intention of this Amendment is to bring into force as soon as possible those Parts of the Bill which deal with the immense cruelty in poaching, and to leave until rather later Part II relating to sales of venison, which will take a little time to set up, getting the forms printed and the machinery into operation. This Amendment enables those Parts which are badly needed to be brought into operation as soon as possible. I beg to move.

On Question, Amendment agreed to.

Clause 19, as amended, agreed to.

Schedule 1 agreed to.

Schedule 2 [Prohibited firearms and ammunition]:

11.45 p.m.

Viscount THURSO moved Amendment No. 15: Page 15, line 25, after ("gun") insert ("except for the killing or taking of Muntjac or Chinese Water Deer").

The noble Viscount said: It was at this stage that I intended to keep your Lordships' Committee up for a very long time, but I shall be merciful because I realise that here again this is a matter regarding which I shall probably have to agree to talk to the noble Lord, Lord Northfield, about the problems involved. I also realise that there is one technical mistake in the second of the two Amendments which arise in Schedule 2, but I plead that that it is not my fault. There are in fact 11 lines within 10 by the way in which the Bill is printed; there is obviously a line 37A in the Bill because if one counts from line 35 down to line 40 there is an extra line. With your Lordships' permission I should like to talk to Amendment No. 16 and point out that I am not sure whether that Amendment should refer to line 37 or 38.

The point is that I believe that it is wrong—and I said this on Second Reading—to make one standard weapon for such a varying collection of animals as are listed in Schedule 1. There is a way round the problem and that is to list different weapons for different animals. I am aware of some of the arguments which are put against such a proposal, but I sincerely maintain that greater cruelty and greater damage could be done by attempting to use the very high velocity, larger calibre rifles necessary for shooting red and fallow deer, on Muntjac or Chinese water deer. For instance, a Muntjac is probably not much bigger than the neck of a red deer. We all know that the neck of a red deer is a fairly demanding target for even respectable shots.

I would suggest that at the sort of ranges at which one is likely to meet Muntjac and Chinese water deer, and in the sort of conditions that one is likely to be able to shoot at them, a cartridge in a smooth bore gun of sufficient load would give a better chance of a clean kill than a rifle. I could explain this point at greater length, but I would need more time than I think it is fair to ask of your Lordships tonight. I leave your Lordships with only one simile and that is that it is rather like saying that one is going to revise the Geneva Convention which outlaws certain types of bullets and make it so that the only weapon allowed is a weapon sufficient to kill the largest thing that one could think of, which presumably would be a battleship. Therefore, nobody could use anything in war except (shall we say?) an 18 inch gun. That would plainly be ridiculous. It is just as ridiculous to say that one cannot use anything for killing any of these varieties of deer except the comparatively high velocity rifle specified in the Schedule.

I recognise that these two Amendments may be faulty and may not be suitable, and that it may be necessary to think of a way of drafting other Amendments which will allow the use of a variety of weapons for a variety of animals. If that is so, then I should be amenable to any such suggestion. I beg to move.

Lord DULVERTON

I do not know whether the noble Lord, Lord Northfield, will accept this Amendment, but, very briefly at this late hour, if he decides to discuss the Amendment with the noble Viscount, Lord Thurso, may I suggest that the calibre of shot should be altered? The Amendment says .143 inches or 3.63 millimetres. That is the size of shot commonly known as the No. 1 shot. I believe that if the shot cover were legalised for these two kinds of little deer, it would be too small. The kind of shot normally known as BB would be a more appropriate size of shot to use. I am afraid that I cannot quote the millimetres involved but BB is something like 5.4 millimetres as opposed to 3.63 millimetres.

Lord BURTON

I believe that No. 1 shot is now out of production anyway.

Lord NORTHFIELD

I should like briefly to make three points to the noble Viscount. First, the aim of the proposals in the Bill is to stop the potting at and the severe wounding of small species, which happens so frequently during pheasant and rough shooting. In those circumstances the shotgun is almost certainly loaded with, say, No. 6 or No. 7 shot. We are trying to stop that. The danger is that in bringing in the shotgun for use against these small species, the temptation would be to say, "We might as well have a pot at these while we are doing some rough shooting because who can prove whether we had No. 6 or No. 7 shot instead of No. 1 at that point. We cannot stop and take our No. 6 or No. 7 shot out and put in No. 1 because we have just seen a deer run across the shoot. Who can prove it without capturing the animal and saying what kind of shot is in it?" The danger is that if you start this you would in fact to some extent be opening the door to allowing people to be slightly careless about using smaller shot and hoping to get away with it.

Turning to my second point, the noble Viscount did make the legitimate point that perhaps greater sophistication in the definition of appropriate shot is needed. But I do not think it is in this Bill. This is a point which we hope the Interdepartmental Committee, which my noble friend has promised, will be looking into. It will need to be looked at not simply in terms of the Muntjac or the Chinese water deer, but in terms of other species of deer as well. It would be best to leave it to the Interdepartmental Committee, which I hope will report, say, in 12 months' time, to sort out exactly the degree of sophistication in definition of weapons that is really needed.

Finally, I come to my third and last point on this matter, and in doing so I take up the noble Lord's point. The British Deer Society has offered to arrange a day's stalking for the noble Viscount, but he should bring his own rifle which should be of a calibre not less than .240 inches. I hope that he would then see things for himself and also understand the other point of view about it. I have made my three points and I am grateful for his indication that he will not press these points at this stage.

Lord TRYON

I should like to join in this discussion because I, too, made similar noises to the noble Viscount's about the Muntjac during the Second Reading debate. I believe that it would be a mistake to start differentiating between them and, say, roe. I fear that many people would plead to having shot a roe deer with the wrong size shot in the belief that they thought it was a Muntjac or vice versa. I am sure that these are refinements that can come later in legislation, and I am sure that there will be later legislation on red deer. The noble Lord has not actually included No. 1 shot and I shall be chasing him for that later, but I thank him for including my AAA shot Amendment. At this stage of the legislation on deer, to have different sizes of shot would make things totally impossible.

11.55 p.m.

Viscount THURSO

I really cannot accept Lord Tryon's argument about this not being an appropriate moment, nor Lord Northfield's argument about this not being the appropriate place to put it. I prefer the slightly more cynical approach that we heard earlier from the noble Earl, Lord Mansfield: "Will we get another chance to really adjust the loads and shot sizes to the targets against which they are going to be directed?" I am not sure that we will for a long time. In the meantime, I think we would, in fact, be acceding to something which may well be more cruel than the situation it is meant to rectify.

I laughed when I received this charming offer because my rifle has been rebarrelled from 350 magnum down to 300 Holland and Holland magnum, so it will make quite a mess of the Muntjac. I once shot a small animal with it and only about half the small animal was left after the process, so I do not think it would be a good idea. It would demonstrate my point of overkill. I would far prefer to accept an offer of some stalking while it is still legal, using, shall we say, DB, and demonstrating how effective this is and how much more effective it would be than anything that could be done in similar circumstances with a rifle. However, I will accept the invitation if it is really made. I should be interested to carry out a demonstration.

The important thing at this stage is to say that I am prepared to withdraw these Amendments, but I hope that the noble Lord, Lord Northfield, will talk to me about this matter at greater length. If I am not satisfied I shall come back at Report with a completely different set of Amendments, producing a sandwich which will, I understand, be more acceptable from a drafting point of view. With your Lordships' leave, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 16 was not moved.]

Schedules 2 and 3 agreed to.

Schedule 4 [Enactments Repealed].

11.57 p.m.

Lord NORTHFIELD moved Amendment No. 17:

Page 17, line 7, at end insert—

("1973 c. 54. The Nature Conservancy Council Act 1973. In Schedule 1 paragraph 5.")

The noble Lord said: This is an addition to the repeals made necessary by the

1973 1974 1975 1976 1977 £ million 1978 (to 30th September)
GRANTS
European Agricultural Guidance and Guarantee Fund:
Guarantee Section 63.2 111.8 339.6 197.5 157.3 202.0
Guidance Section — — 2.4 9.6 23.3 31.0
Regional Development Fund — — 0.3 28.5 60.0 23.3
Social Fund — 16.1 19.3 11.1 47.8 39.8
European Coal and Steel Community — 1.2 6.5 7.4 9.0 3.9
LOANS
European Investment Bank 32.9 79.9 186.5 259.0 320.7 286.3(1)
European Coal and Steel Community:
BSC — 19.0 60.4 207.3 114.9 7.7
NCB — 18.0 71.0 89.8 61.0 142.3
(1) To 31st December.

Between 1st January 1973 and 31st December 1978 the European Investment Bank granted loans in the United Kingdom totalling £1,165.3 million. Details are given below. In some cases, as indicated, it is not possible to quantify

repeal of the Deer Act 1963 which this Bill will replace. It is therefore purely technical. I beg to move.

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

House resumed: Bill reported with the Amendments.