§ 152 Schedule 7, page 62, leave out lines 4 to 6 and insert:—
§ .— (1) Notwithstanding the provisions of section 6 of the Ground Game Act 1880, it shall not be unlawful for the occupier of any land himself, or one other person authorised by him under section 1 of that Act, to use firearms for the purpose of killing ground game thereon between the expiration of the first hour after sunset and the commencement of the last hour before sunrise if (except where he has the exclusive right) the occupier has written authority of the other person or one of the other persons entitled to kill and take the ground game on the land.
§ (2) In this paragraph "ground game" means hares and rabbits.
§ .—(1) Notwithstanding the provisions of section 50(1)(a) of the Agriculture (Scotland) Act 1948, it shall not be unlawful for the owner of the shooting rights on any land or any person holding those rights from him, or the occupier of any land (who may in writing nominate one other person), to use a firearm for the purpose of killing ground game thereon between the expiration of the first hour after sunset and the commencement of the last hour before sunrise, if (except where he has the exclusive right) he has written authority of the other person or one of the other persons entitled to kill and take the ground game on the land.
§ (2) In this paragraph "ground game" means hares and rabbits.
—(1) At the end of subsection (2) of section 1 of the Dogs (Protection of Livestock) Act 1953 (penalty where dog worries livestock on agricultural land) there shall be inserted the words "or
(c) being at large (that is to say not on a lead or otherwise under close control) in a field or enclosure in which there are sheep".
(2) After that subsection there shall be inserted the following subsection—
(2A) Subsection (2)(c) of this section shall not apply in relation to—
§ The Earl of Avon
My Lords, I beg to move that this House doth agree with the Commons in the said amendment. With the leave of the House, I shall speak first to Parts I and II of Amendment No. 152. Part 1 of the amendment would rectify an anomaly arising from the interpretation of the Ground Game Act 1880. The anomaly being remedied in England and Wales by superseding the application of the 1880 Act to night shooting is between, on the one hand, owners of land with shooting rights (whether or not in occupation of the land) and shooting tenants not in occupation who have been held by the courts not to be subject to the ban on night shooting and, on the other hand, occupiers who are. As for the most part such non-owning occupiers are tenant farmers who wish to protect their crops, the anomaly is considered to be unjust and in need of remedy.
648 The first part of Amendment No. 152 gives occupiers in England and Wales the right to shoot ground game at night if they have the written authority of one of the persons with a similar right. They would also be able to delegate the right to shoot to a person under Section 1 of the 1880 Act; for example, an employee or a member of his household resident on his land. This brings the position at night into line with that during the day.
The second part of Amendment No. 152 deals with the position in Scotland. At present, no person in Scotland may shoot ground game at night. There is no difference in circumstance between England and Wales, and Scotland which justifies a difference of this nature. Accordingly, the second part of Amendment No. 152 was intended not only to give occupiers—provided they have written permission—the right to shoot but also to give such rights to the owner of the shooting or a person who has been granted shooting rights whether exclusively or otherwise.
With the leave of the House, I shall now turn to Part 3 of the amendment which concerns sheep worrying by dogs. Noble Lords will recollect that the Government were sypathetic to the intention of protecting sheep from dog worrying but did not feel able to support the amendments which were moved during various stages of the passage of the Bill in February and March. However, we recognised that there was a wide measure of support in this House for the inclusion of some provision to prevent sheep worrying to supplement what is already provided for in the Dogs (Protection of Livestock) Act 1953 and the Animals Act 1971, and there was similarly widespread support for such a measure in the other place. We therefore undertook to draft a suitable clause.
The clause which was produced forms the third part of this amendment. It contains various exemptions which are considered to be necessary. We have defined "at large" in relation to dogs in fields to mean "not on a lead or otherwise under close control". As Sir Hector Monro said, in moving this clause on Report in the other place,We recognise that the meaning of "under close control" cannot be precisely defined, but the phrase is evidently acceptable to the major interests which support the tightening up of the sheep-worrying legislation and we believe that the implications will generally be clear".If the House agrees to this amendment, it is the Government's intention that it should be brought into effect in time for the lambing season.
At the same time I should like to speak to Amendments Nos. 152B, 152C and 152D. These amendments are necessary in order to ensure that the law on shooting ground game at night should be the same in Scotland as in England and Wales, and they are consequential to Amendment No. 152. Certain inconsistencies arose as a result of the drafting.
The amendments that I propose will make it clear that in Scotland, as in England and Wales, the occupier of agricultural land will be entitled to delegate the right to shoot at night only to one person who must be in his employment or a member of his household. The amendments will also remove a curious effect of Commons Amendment No. 152 whereby an owner of shooting rights in Scotland would have been required to obtain the consent of any other owner of shooting 649 rights to shoot ground game at night. The amendments ensure that that proviso applies only to tenants in order to protect rights over game. I beg to move.
§ Moved, That this House doth agree with the Commons in the said amendment.—(The Earl of Avon.)
§ As an amendment to Amendment No. 152:
§ 152A Leave out lines 1 to 26.
§ Lord Houghton of Sowerby
My Lords, I beg to move the amendment standing in my name, to leave out lines 1 to 26. I am sure that the noble Earl, Lord Avon, intended to do full justice to the purpose of these amendments, but I must say that, had I not studied this matter very closely myself, I should have had difficulty in following the merits of the arguments that he used. The truth is that we have been here before. On 8th July last year, the noble Lord, Lord Auckland, introduced as a Private Member's Bill the Ground Game Bill 1980, which was to amend the Ground Game Bill of 1880, as though to celebrate the centenary of the passing of the 1880 Act. That Bill received its Second Reading in your Lordships' House on 23rd July last year but thereafter it ran into difficulties. At Committee stage amendments were seriously considered and the Committee stage collapsed because, when there was a Division, there were not the necessary numbers to support a valid vote of this House. As time was going on in July of last year, the Bill made no further progress. Before that Bill came here it had been introduced as a Private Member's Bill by Mr. Hooson, Member of Parliament, in July 1979. It went through another place without a word being said in support of it. It got through its Second Reading on the nod. It went to a Committee upstairs in another place, where the sponsor of the Bill submitted a redraft of the only substantial clause in the Bill which had been supplied to him by the Home Office. The Committee proceedings were over in 11½ minutes. It was on that basis that the Bill passed through another place and was introduced by the noble Lord, Lord Auckland, in this House in July of last year.
Where does Amendment No. 52 on the Marshalled List tonight come from? Where did the other amendments come from? Who put them there? First, no attempt was made in your Lordships' House at any earlier stage in this Bill to introduce clauses which have nothing to do with this Bill and which are alien to it. No such attempt was made by anybody—not by the noble Lord, Lord Auckland. The Bill went to another place without any attempt being made here to resuscitate the clauses in the Ground Game Bill of 1980. It went to Committee in another place and still no attempt was made to bring these clauses into the Bill. But the Bill got to Report stage, and on 13th July these amendments were put into the Bill without, so far as I can find, any debate whatsoever.
I have never surely encountered legislative change with so little being said in support of it. Talk about a silent conspiracy, this is the neatest piece of sleight of hand that I have seen in Parliament for a very long time. If we are going to deal with the question of Scotland, let me stress the fact that Scotland was excluded from the Ground Game Bill of 1880 and, so far as I can find out, at no time has the proposal 650 been made here or debated elsewhere to include in this Bill an amendment of the Agriculture (Scotland) Act 1948 as amended by the Pests Act 1954. The Ground Game Bill of 1880 enlarged the area of the use and the right of shooting of hares and rabbits, but in 1948 and in 1954 Scotland changed the Act of 1880 in one material respect. It prohibited the shooting of ground game at night, whereas the 1880 Act made lawful the shooting of ground game at night by certain persons specified in the Act itself. Scotland has a complete ban at the present time on the shooting of ground game at night.
This amendment proposes to remove that ban. That was not proposed in the Bill which came before your Lordships' House last year. It has never been put forward in another place until spatchcocked into this Bill right now. This seems to me to be a most irregular use of the machinery of Parliament to bring about a significant change of that kind. Scotland is turned from a civilised to an uncivilised country overnight by amending the legislation which has been there so long.
There is an anomaly. The anomaly to which the noble Earl, Lord Avon, referred began with a judgment by the Court of Appeal 67 years ago, in 1913. The anomaly has persisted ever since, and 67 years after it started we are told that it is time to remove the anomaly. I should have thought that, if an anomaly is created by a judgment of the courts, one will not necessarily remove the anomaly by a further extension of the right to shoot. I suspect that one would first wish to consider what were the intentions of Parliament when the original Act of 1880 was passed. There is no doubt that the Act of 1880 did two things. It enlarged the area of the destruction of hares and rabbits, but at the same time it prohibited those who were brought in to the enlarged facility for shooting from shooting at night. I see no justification for bringing these amendments before your Lordships' House in this Bill. Is it conservation? What is it? What is the purpose behind these clauses that is relevant to the Bill?
Just recently the noble Earl on a number of occasions has said that the test within the scope of this Bill must be—is it conservation? Is it the preservation of the species? Is it the safeguarding of the environment? Is it a conservation purpose? The Government have gone to extreme lengths to prevent this Bill being used as an instrument against blood sports. I recall for the benefit of your Lordships how far the Government have gone along that path. We have protected the otter from being killed or taken. We have protected the otter from the disturbance of his habitat. But we have not outlawed hunting. You can hunt the otter in law. You may not kill it; you may not take it; you may not destroy its habitat, but you can hunt it.
That of course is a palpable absurdity, but it is maintained in order to preserve in the utmost degree the principle that this Bill must not be used as a means of curbing blood sports. And yet we get these amendments in the Bill just now without any argument relating the purpose of the amendments to the purpose of the Bill. All that the noble Earl has said is, "to rectify an anomaly". This Bill is not here for the purpose of rectifying anomalies. This Bill is here to achieve a certain specific purpose, and there is no reason at all for dragging in at the last stages of the 651 Bill amendments of this kind to rectify anomalies which have nothing to do with what the Bill is really about.
If it was desirable to remedy this anomaly, which I am sure very few people are aware of, I should like to know how many people have felt inhibited about shooting anything at night because of the Act of 1880 and the judgment of the court of 1913. However, one must not condone lawlessness even though a great deal of it would be through ignorance. But why is it pressing now, I ask your Lordships? Why now? I know where the impetus came from, because your Lordships who know the disposition of what one might call the British Field Sports Society will identify those who have been behind this kind of amendment in the past.
Well, I have got it off my chest. I hope I am not being unduly fussy, but it seems that this matter is regarded in some quarters as either so obvious, or as so trivial, that it is not worth uttering words about it. Indeed, in the Committee stage in another place the mover of the Bill said that it was so obvious that he need not make a speech about it. And he did not. Well, I wish we could get away with amendments and add new clauses to Bills as easily as that. But why are the Government conniving at this? Why are they doing anything about it? Why have not they resisted this in the interests of keeping the Bill in a state of theoretical purity so that we work within the boundaries laid down by the Government themselves? I feel strongly that we ought to pay a little more respect to Scotland than to sweep up into this Bill changes in laws applicable to Scotland which have been passed much more recently than 1880. In 1948 and in 1954 Scotland decided to outlaw night shooting of ground game, and here we are departing from that. I see no justification for that.
Would that Scotland had more responsibility for its own affairs, but I should have thought that night shooting in Scotland had dangers in regard to deer greater than night shooting elsewhere in England and Wales. That is the one thing I should have thought they would want to outlaw in Scotland: the night shooting of deer. If you have the night shooting of ground game, you can have the night shooting of anything.
I said earlier that the one thing we want to achieve in this country is that any shot during the hours of darkness is prima facie unlawful. Many people hear shots in the night and say, "I thought it was somebody shooting at something", only to find that their neighbour has been murdered. We are too free in the use of the gun, as though we had a prescriptive right, as though we had the American mentality—that we want a gun to defend ourselves—when our use of the gun in the civilian context is mostly to satisfy our instinct for sport. I wish that word could be deleted from the vocabulary of shooting.
However, many noble Lords will not feel as I do on this matter as a general principle. But law and order, violence, sawn off shotguns, shooting, pop guns at the Queen—anything you like—and the airgun is another example of where we have failed to take a firm grip on the use of the gun. That is why I propose to delete from the Bill the two amendments relating to the Ground Game Act 1880 and the Agriculture (Scotland) 652 Act 1948, which have no place in this Bill, which were not in the Bill to begin with but which were inserted in another place at the very latest stages of the Bill. That was done on 13th July last, when the consideration of the Bill was drawing to a close; and if noble Lords wish to read the Official Report of the proceedings there they will realise, as I do, that in another place they were scampering to the end of the Bill, hurrying to get it over before the Summer Recess so it would be here immediately we came back. We should not connive in the passing of legislation in that sort of mood and in those circumstances.
That is why I propose this amendment. Let us deal with that anomaly, if such it be, in a manner that can be considered entirely separately from the principles of the Bill, to which it does not belong, and let the subject come forward, as it did before, as a Private Member's Bill, when we can discuss it at our leisure, without the Whips on, and not with the Government recommending the acceptance by your Lordships of amendments they have not seen or discussed before, unless they took part in the debates last year.
§ Moved, That this House doth agree to the amendment to Commons Amendment No. 152.—(Lord Houghton of Sowerby.)
§ Lord Monk Bretton
I wish briefly to speak against the amendment, my Lords. The issue is narrow, as my noble friend Lord Avon endeavoured to point out, and because of its narrowness it is inevitable and perhaps not unreasonable that there should not have been a great degree of discussion, and perhaps one need not complain too much about that. My understanding of the position is that this affects only the tenant farmer who is also tenant of the sporting rights. In most cases, after all, a tenant farmer is not also tenant of the sporting rights, or alternatively there is an owner occupier who probably himself has the sporting rights, so only a small category of people are concerned; I doubt whether their numbers are at all large.
I think the House has already agreed the night shooting issue, and one does not want to elaborate at this late stage much further on that. There seem to be strong arguments that as a few people are affected by the curious position which results from the court interpretation of the Ground Game Act 1880, those people should be put in the same position as everyone else. This is not the time to talk broadly about night shooting, but I feel it right to mention in passing that it is a means of controlling the rabbit, a tiresome pest, particularly in the period after harvest. At that time of year there is usually too much cover to adopt any other means for some little while, and to protect the autumn-sown corn as it comes up, it is useful to be able to go night shooting during that period.
§ The Earl of Avon
My Lords, perhaps I may put the noble Lord, Lord Houghton of Sowerby, right on one or two minor points. The matter was actually discussed in Standing Committee D on 2nd June in the other place and it was raised by my honourable friend Mr. Farr. In view of the fact that this does not seem to have been discovered, I should like to read out his final sentence and the first paragraph of the speech of the Opposition speaker, the honourable 653 Member Mr. Hardy. Mr. Farr stated—I quote from column 384 of the Official Report of Standing Committee D of 2nd June—I particularly believe that the present anomalous position should be resolved and that all farmers who comply with relevant legislation should be allowed to control ground game at night for the better protection of their crops. I do not believe that tenant farmers should be liable to prosecution, as has happened in the past, for protecting their crops with this undoubtedly effective method, which is already widely used".Mr. Hardy responded to that:If the hon. Gentleman is right—I believe that he is—that the amendment seeks merely to remedy an anomalous situation and is a gesture towards egalitarian arrangements in the countryside, it is unobjectionable".The noble Lord quoted the Agriculture (Scotland) Act 1948. That re-enacted previous legislation without amendment. It did not remove ability to shoot ground game at night.
There exists here an anomaly which is unfavourable to the occupier, and it is this situation which we are being asked to remedy. The anomaly in question is of some significance. It is not merely a question of conditions in the law. Rabbits and hares do considerable damage to crops and pasture. Night shooting is one of the principal methods of keeping down their numbers to a reasonable level. Protection of crops is a matter which concerns occupiers especially. It would therefore seem desirable that they should have the same right to protect their crops.
I recognise the concern that the Commons amendment might lead to a dangerous increase in the amount of shooting done at night. I appreciate these fears, but I hope that we may keep them in some perspective. Research has conclusively shown that there is no link between the level of crime and the number of guns legitimately held under firearm certificates.
The shooting of ground game at night is not a new activity. The police are fully acquainted with it. As your Lordships will be aware, the Firearms Act 1968 imposes strict controls on the use of firearms. Chief constables are given the power by that Act to decide who should have firearms certificates. I believe that we can have sufficient faith in the judgment of chief constables to be confident that this amendment would not result in any increase in the number of undesirable persons using firearms at night.
The noble Lord, Lord Houghton of Sowerby, made the particular point as to how we got on to Scotland, and I can imagine that that was through the vigilance of my honourable friend the Minister in the other place, who was none other than Sir Hector Monro, who if he can stand up for Scotland at any time, certainly does. I imagine that that is why Scotland was included. I hope that, having heard those points, the noble Lord, Lord Houghton, will feel able to agree to what is, as my noble friend behind me said, a narrow but important amendment.
§ Lord Melchett
My Lords, it might be said that Sir Hector Monro got his deserts at the hands of his Leader for sticking up for Scotland or anywhere else. I waited until the noble Earl had replied to my noble friend because I was hoping to hear an explanation of why the Government had decided in another place to amend the Ground Game Act when we had been told 654 so repeatedly and so firmly by the noble Earl and his colleagues in this House that this Bill was not the place to amend the game Acts or to put forward amendments which had any effect on legitimate sporting activities, as noble Lords opposite would have it. On the whole my noble friend and I abided very strictly by that informal advice from noble Lords opposite. It seems to me that that understanding was pretty shamelessly thrown aside when the Bill got to another place and when this provision was inserted, just as other understandings which were arrived at by all parties in this House appear to have been discarded by the Government when the Bill got to another place, without a "by your leave".
I do not think that my noble friend and I can do very much about it at this stage. But I hope that we might take some comfort from a thought about the totally unreasoning opposition, as I see it, to various amendments that have been put forward which would have affected some aspects of shooting such as night shooting, the length of the shooting season. Sunday shooting, and so on. The Bill and the debates that we have had, including the debate on this amendment. will have alerted responsible conservationists and the animal welfare movement to some of the grave shortcomings in the legislation affecting shooting and in the long run will have done some service, in the sense that those defects will secure much more public scrutiny than they have in the past.
§ 9.25 p.m.
§ Lord Houghton of Sowerby
My Lords, perhaps I may be permitted one or two brief comments. As regards Scotland, when the Ground Game Bill of 1980 was under consideration in this House, the sponsor was advised that it would be inappropriate to extend the provisions of that Bill to Scotland, particularly as Section 6 of the Ground Game Act 1880, of which the present Bill is a qualification, has already been repealed in Scotland. He was advised that the Agriculture (Scotland) Act 1948 repealed Section 6 of the Ground Game Act 1880, which prohibits the use of firearms by occupiers to take rabbits and hares at night in respect of Scotland. But Section 50 of the Agriculture Act, as amended by Section 10 of the Pests Act 1954, prohibits any person from shooting ground game at night; and its provisions were not restricted to certain persons as in the Ground Game Act of 1880.
Therefore, the present position is that any person in Scotland is prohibited from shooting ground game at night. That, as I am advised, is the position. I am not very clear what the amendment on the Marshalled List does in Scotland: whether it repeals that entirely or whether in some way it modifies what is the existing law in Scotland. In any case the position is not as clear as the noble Earl indicated a moment or two ago. Let us be clear what the 1880 Act did. It gave owner occupiers the right to take ground game even where they had granted game rights to another person. Even though they had contracted the shooting rights away, they were entitled under the 1880 Act to shoot ground game. It also gave tenants the right to take ground game even where the owner had reserved the game rights to himself or where he had granted them to some person other than the tenant. The 1880 Act gave owner 655 occupiers and tenants, irrespective of contractual rights, the right to shoot over the land they occupied.
That is what the 1880 Act did; but at the same time, in giving those extra contractual rights—and the great debate in 1880 was whether an Act of Parliament should override the law of contract—it included a stipulation that those to whom extra rights were granted should not use them to shoot at night. That was where the anomaly, as it turned out to be, lay. The Leworthy v. Rees case in 1913, which was a judgment of the Court of Appeal, made a very narrow construction of the 1880 Act and produced the anomaly. That is my reply on the technicalities of both Scotland and the present anomalous position—anomalous only because a court of law construed the 1880 Act as they thought fit against what obviously were the intentions of Parliament at the time.
Finally, I apologise to the House for not having discovered, in the enormous volume of paper that I went through on this matter, the references to this at the Committee stage in another place. I went through the Report stage and could not discover the origin of these amendments, but if they were discussed in Committee in another place I am very glad of it; it is the only discussion of these provisions that has taken place since the matter was first introduced in 1979.
I am sorry, but I do not feel able to withdraw my amendment, though I do not feel that I ought to trouble your Lordships to exert yourselves unduly at this hour of night to register your vote in the Lobbies: but there is a difference between withdrawing an amendment and taking the collective voice of the House.
§ On Question, amendment to the amendment negatived.
§ The Earl of Avon moved Amendments Nos. 152B, 152C and 152D to Amendment No. 152:
§ 152B Line 17, after ("or") insert ("(subject to sub-paragraph (2) below)").
§ 152C Line 17, leave out ("(who may in writing nominate one other person)").
1521D Line 21, leave out from ("sunrise") to ("this") in line 25 and insert—
(2) The occupier of any land shall not use a firearm as mentioned in sub-paragraph (1) above unless (except where he has the exclusive right) he has first obtained the written authority of the other person or one of the other persons entitled to kill and take the ground game on the land.
(3) An occupier who is entitled, in terms of this paragraph, to use a firearm for the purpose of killing ground game may, subject to the provisions of section 1 of the Ground Game Act 1880, authorise one other person so to use a firearm.
§ The noble Earl said: My Lords, I have already spoken to Amendments Nos. 152B, 152C and 152D. I beg to move.
§ Moved, That this House doth agree with the amendments to the amendment.—(The Earl of Avon.)
§ On Question, amendments to the amendment agreed to.
§ Lord Melchett moved Amendment No. 152E to Amendment No. 152:656
§ 152E Line 37, leave out ("subsection") and insert ("subsections").
§ The noble Lord said: My Lords, I beg to move Amendment No. 152E as an amendment to Amendment No. 152. Amendment No. 152—at least, this part of it; we are now on the part dealing with the Dogs (Protection of Livestock) Act 1953—was introduced in another place as the result of several debates that we had in this House about the need to tighten the law so as to prevent, or help to prevent, livestock being worried and killed by dogs. The objective is one which I fully share, and I certainly supported noble Lords opposite in some of the final drafts of the amendments covering this point which we considered. So I am in favour of the amendment in principle.
§ I have just one small worry about it, and that is that at the moment it seems to me that it creates an absolute offence in circumstances where this would not always be reasonable. We have had this argument when, as it were, the boot has been on the other foot, when it was suggested that it would be quite wrong for landowners or farmers to be guilty of absolute offences, and I hope that noble Lords opposite will feel that what is sauce for the goose should be sauce for the gander and they will apply the same sort of criteria when discussing what happens to a dog owner who is walking through a field.
§ If the dog owner is in a small field, the weather is clear and the sheep are visible, there seems to me to be absolutely no doubt that if the dog is out of control in the field that is bad practice. That is something which this amendment would make illegal, and I am all for that.
§ Where I am worried is if somebody with a dog is walking on an open hill and they enter something which it is not apparent to them at the time is an enclosure but which actually is, and that, of course is quite possible, either because of the weather conditions—they could be in cloud at the time and not be able to see that the wall they have just passed through is actually part of the wall of a field, or the weather conditions could be such that they think they can see across the whole of the field and that there are no sheep in it when in fact there are—or, alternatively, because of the shape and the lie of the ground, which could prevent them from seeing a small number of sheep huddled in a corner out of the wind, or whatever, so that only when they get very close to them or get up on to a rise in the ground can they see the sheep.
§ In those fairly unusual circumstances, and bearing in mind that the field or enclosure in this clause is not defined in any way, that there is no limitation on it and that it could therefore presumably be something covering a very substantial area indeed, it seems to me that the test of reasonableness should be applied; in other words, that the person in charge of the dog should be able to say, "It was quite unreasonable for me to see that there were sheep in this field or to realise that I was in a field or enclosure; I just had no way of knowing", and that would be clear from the evidence that was presented about, as I say, whether conditions, the lie of the land or whatever.
§ In those circumstances, it would be foolish for them to be made guilty of an offence. This is something about which in other discussions noble Lords opposite have felt strongly and have gone into the 657 Division Lobbies to resist any absolute liability being placed on people. I hope that in those circumstances in practice this amendment will strengthen the provision which the Government are suggesting be put into the Bill. By making it a more reasonable provision it is more likely that prosecutions would be taken and people would end up in court and found guilty. If it goes in as it is now, in some circumstances it will be quite unreasonable and end up by not being very strongly enforced, which is what often happens to provisions of Acts of Parliament which are not really fair. I beg to move.
§ Moved, That this House doth agree to the amendment to Commons Amendment No. 152.—(Lord Melchett.)
§ Lord Renton
My Lords, although one necessarily tends to agree with the noble Lord that we should not create offences of absolute liability—that is to say, offences which make it unnecessary for the prosecution to prove a guilty intent. Nevertheless, the defence which he purports to set up in the words in Amendment No. 152G makes it much too easy a defence. Even when one accepts that the onus will be on the accused to prove this, all that he or she has to say in effect is: "When I took my dog there I did not think that it was in a field or enclosure in which there were sheep". That seems to me to be much too easy.
I do not think, with great respect, that this is realistic. It could nullify the effect of the main provision which is to extend the Dogs (Protection of Livestock) Act, 1953 and to make sure that where dogs worry sheep on agricultural land there shall be an offence committed in the circumstances mentioned in the original provision as extended in Amendment No. 152. While one appreciates the sincerity of the motive of the noble Lord, Lord Melchett, it does not seem to be a practicable proposition to accept it.
§ Lord Stanley of Alderley
My Lords, I should like to speak briefly on this. Regarding the words, "reasonable belief" and "at the material time", with respect, may I say that the noble Lord, Lord Melchett, is always telling us that we should have amendments that the layman can understand. Frankly if he can understand that, I cannot and I do not think that anybody else can. I think my noble friend Lord Renton will agree that legally it does not make a great deal of sense. The other point is that this amendment came back agreed in the Commons by all the parties; by the farmers, the British field sports people, I think, and the ramblers. They were well aware of this right the way through. Now at this stage the noble Lord, Lord Melchett, brings it up. I suggest that we leave it as it was decided and agreed by a compromise, which is really what this Bill is and has been and should be all the way through.
§ Lord Melchett
My Lords, before the noble Lords down, could he tell us on what basis this was agreed by the Ramblers' Association when it was introduced in another place.
§ Lord Stanley of Alderley
My Lords, with the leave of the House, Yes. The ramblers have been a part to this right from the start. At no time have they objected to this amendment. If they are objecting 658 it is only at this stage, they did not object to it in the Commons.
§ The Earl of Avon
My Lords, this amendment, as the noble Lord, Lord Melchett, has explained, is designed to meet those circumstances where the shape of a field or the configuration of ground is such that sheep may be hidden from the person in charge of the dog. At first sight—particularly as explained by the noble Lord—it seems not unreasonable that if a man can see no sheep he should be allowed to assume that there are no sheep there. But there is the other side of the coin, and I submit it is equally reasonable to expect a man to make sure that there are no sheep in the field before letting his dog loose. That is to say, that if the whole of the field is not in view he should assume that it is unsafe to let his dog go until he has firmly established that the field contains no sheep. That is really the basis of the argument between us.
My preference is for the second proposition. I believe that the dog owner has a duty to ensure that it is safe to release his dog before doing so. If we were to accept the amendment it would be all too easy for the dog owner to claim that he had reason to believe that he was not in a field containing sheep. He could in fact make such a claim without even being near the dog. My noble friend Lord Renton has already put the legal argument so clearly that I think it is unnecessary for me to underline it, but I was going to say that the Government think this amendment would be very difficult to enforce. For that reason we cannot recommend it.
§ Lord Melchett
My Lords, as I said, I support very strongly the basic objective of the amendment that has been introduced and I would not want to put something in it that was going to make it difficult or even impossible to enforce, so I have no intention of pressing the amendment.
I also accept the argument the noble Earl has put forward, that it is reasonable to expect people in sheep-rearing areas where sheep farming is carried out and where they know that to be the case, walking into a field, to keep the dog under close control or on a lead until they have ascertained whether or not there are sheep there. Whether the same could be said if one unexpectedly comes across a flock of sheep in an entirely arable area, where of course this amendment would still apply, I am not so sure. There may be some hard cases but then I accept that farmers have a very hard case to deal with when a dog gets loose, savages sheep and kills large numbers of them. That, of course, is the evil this amendment is designed to prevent.
I should like to put the noble Lord, Lord Stanley, right. As far as I know—and I have had discussions with them—the Ramblers' Association were not entirely happy with the detail of the amendment as introduced in another place and the same is true of the detailed drafting of amendments that were discussed in your Lordships' House when the Bill was here. They, like me, have never been worried about the objective which the amendments have been aimed at but they have been worried about the practical consequences for quite innocent people walking their dogs in the countryside. I must say I would still have some worries on 659 that score myself. I beg leave to withdraw the amendment.
§ Amendment to Commons Amendment No. 152, by leave, withdrawn.
§ [Amendment Nos. 152F and 152G not moved.]
§ On Question, Motion, as amended, agreed to.