HL Deb 26 June 1990 vol 520 cc1516-26

7.35 p.m.

Report received.

Clause 1 [Causing or permitting child under 14 to ride on road without protective headgear]:

Lord Monson moved Amendment No. 1: Page 1, line 6, after ("permit") insert (", without reasonable excuse,").

The noble Lord said: My Lords, in Committee, ably supported by the noble Lord, Lord Stoddart of Swindon, I moved three amendments whose central purpose was to protect from prosecution parents and de facto guardians, and owners of horses and ponies who are not parents or guardians, in cases where children, in particular older children, had, for example, undone their chinstraps without the older person's knowledge or consent.

The basic aim of the amendments received considerably more support, it is fair to say, from noble Lords in all parts of the House than most of our other amendments. Protection from prosecution of the absentee owner of a horse or pony, acting in good faith, was urged by the noble Lord, Lord Mancroft, the noble Earl, Lord Cork and Orrery, and, subject to one proviso to which I was happy to agree, by the noble Viscount, Lord Mountgarret. However, in the end, one amendment was negatived and the other two were withdrawn on the understanding that I would return at a later stage with an improved version, taking into account the reservations that had been expressed in Committee.

I had it in mind to introduce two inevitably complicated and verbose amendments on the lines of, "It shall be a defence to any prosecution brought under this section to prove" and so on; but I decided that it was far better in every way, from the point of view of simplicity and clarity to follow the excellent precedents set by other statutes, merely to interpose the three words, "without reasonable excuse".

The concept of "reasonable excuse" is found in statutes dating back to at least 1870—that is to say, 120 years. The most recent example—and from the Bill's point of view the most pertinent and relevant—is to be found in the Motor Vehicles (Wearing of Rear Seat Belts by Chilren) Act 1988. The parallel with the Bill is a precise one because when the Motor Vehicles (Wearing of Rear Seat Belts by Children) Bill was being drafted, it was recognised that parents can only do their best. They cannot do more. They can buckle the children's belts up in the back seat and tell them firmly not to undo the belts, but in the last resort they cannot watch their children like hawks every minute of the journey. Parents must keep their eyes on the road. Therefore there is a necessity for the insertion of the words, "without reasonable excuse", which significantly do not appear in the Bill concerning the wearing of seatbelts by adults also piloted through the House by the noble Lord, Lord Nugent of Guildford.

It is no use saying that in such circustances probably the police would not prosecute or that in the event of a prosecution probably the courts would not convict. Once certain powers are laid down for the police, there is no absolute guarantee that they will not be used. In effect there is an absolute offence. Even if the defendant is acquitted or the conviction is overturned on appeal, he or she still has the trauma of going to court, with all the worry and the cost involved. There are plenty of precedents for this kind of legislation. Naturally the excuse must be reasonable. An unreasonable excuse would not convince the police or, if it came to it, the courts, and would still invite prosecution.

During the Committee stage debate, at col. 989 of Hansard for 20th June, my noble friend Lady Masharn said: I do not think that, if he has done his best, the owner should be liable". Nor do we. That is why, following in the footsteps of the "seatbelts for children" Act, to paraphrase, it is both reasonable and necessary to provide safeguards for that owner or the conscientious parent who has done his or her best. I beg to move.

Lord Gisborough

My Lords, I wish to support the amendment. It is true that the police will not come in to premises and keep watch to see whether or not children have hats on. The problem is that if there is an accident, there is an inquiry. If there is an inquiry, the facts come out and it is all a matter of insurance and damages involving people who deal with children. It is important whether or not the children wear the hats and the problems occur where there is an accident. It is matter of the parent using his best endeavours, and one cannot do more than that. If "without reasonable excuse" is the same as using one's best endeavours, then that is fair enough.

Viscount Mountgarret

My Lords, I am sorry but I have to take issue with my noble friend Lord Gisborough. The amendment is quite unnecessary: it opens the floodgates to people arguing about what is and what is not reasonable. People can always think up an excuse for not doing things in this life. If they are not given the excuse in the first place, there is no argument.

The purpose of the Bill is to require young children to be properly protected with the proper headgear. It is quite clear: either one agrees with that or one disagrees with it. If we agree with it then we should not put in other provisions that we will excuse this or that. There is no excuse. It is verging on being criminal to allow any young child to ride any animal without the proper headgear. I hope that your Lordships will reject the amendment.

7.45 p.m.

Lord Airedale

My Lords, in supporting the amendment I begin by saying to the noble Viscount, Lord Mountgarret, that the question of reasonableness comes before the courts every day. Courts are always having to determine whether somebody acted reasonably: it is the commonest occurrence in the world. I should like to think that we could establish a rule that no Private Member's Bill would ever create an offence involving strict liability. That is to say that the person charged has no defence at all provided that the facts stated in the legislation are proved by the prosecution.

I say that because, generally speaking, Private Member's Bills are of limited application and limited interest to Parliament. There must be exceptions to that. If a Private Member were to introduce a Bill to restore the death penalty, I dare say that great interest would be aroused. However, generally, Private Member's Bills deal with rather small matters which do not engage the same amount of parliamentary attention as government Bills involving larger issues.

In Committee I ventured to cite the licensing Act because, if not exactly a precedent for this Bill, it is a parallel matter. It involves the sometimes rather difficult problem of a licensee of a public house having to decide whether a child whom he has never seen before is above or below the permitted age. That is much the same problem as that faced by the proprietors of riding establishments under this Bill. Under the licensing Act, having been given a great deal of attention by Parliament, a statutory defence was inserted into the Act. If the licensee proves that he acted in good faith and that the young person was apparently over the permitted age, that is a good defence. If prosecuted, the licensee is not guilty.

The noble Lord, Lord Monson, now cites the perhaps closer parallel of the legislation on seat belts for young children. It is written into the Act that the person charged is guilty only if he has acted without reasonable excuse. Parliament is criticised for creating too many criminal offences. We do not wish to create unnecessary criminal offences by saying that every riding establishment proprietor is liable to be guilty of an offence, however much he acts in good faith, when faced with the rather difficult matter of deciding a child's age.

The noble Lord, Lord Monson, said that parents could only do their best. The noble Lord, Lord Gisborough, said that parents could only use their best endeavours. Licensees can only use their best endeavours. The proprietors of riding establishments can only use their best endeavours. They may make mistakes, but if they do their best and act in good faith, let us not automatically make them criminals because the Bill involves strict liability and does not allow a defence.

I hope that the noble Baroness will accept the amendment moved by the noble Lord, Lord Monson. Then we shall not unnecessarily make criminals out of riding establishment proprietors.

The Earl of Erroll

My Lords, I wish to support the amendment. Clause 1(2)(b) appears to create an absolute offence, in that the owner of the horse, who might be a thousand miles away, is automatically guilty. I know that this was covered at Committee stage and that amendments to clear up the matter were rejected. However, it seems to me that this amendment would also cover the situation and would mean that the offence would no longer be potentially a statutory one.

The whole matter arose before over the Dangerous Drugs Act 1965. The case of Sweet v. Parsley reached this House on appeal before it was decided that the categories of statutory offence should not be extended without clear and express words in the section of the Act creating a new offence. The House referred back to the Dangerous Drugs Act 1920 in order to construe the words used in the 1965 Act. It was decided that the categories of statutory offence should not be extended and that there should be an element of mens rea; in other words one should be aware that one is committing an offence.

However, the Bill quite specifically states that "any owner" of the horse may be liable. It seems quite clear that there is no preceding Act under which we may construe that this is not a new absolute offence. Without the words "without reasonable excuse", someone will have to bring a test case all the way to the House of Lords at incredible expense, or alternatively he will be fined because he cannot afford to do so. There are a lot of people who cannot afford to bring cases to the House of Lords but who are not eligible for legal aid either. They are caught in a trap between those two margins. This is a reasonable amendment and would clear up what could potentially be a great difficulty.

Viscount Cross

My Lords, if it is a matter of the age of the child, would it not be easy for the child and the parent to give the child's date of birth to the owner of a riding establishment before the child signs on for lessons?

Baroness Nicol

My Lords, I hope the noble Baroness will not accept this amendment. It would seriously weaken the Bill. One of the enormous attractions of the Bill as it stands is its simplicity and clarity. The noble Lord, Lord Monson, admires that in other legislation. The introduction of the phrase "without reasonable excuse" would lead to endless arguments in the courts about what is reasonable and what is unreasonable. The noble Lord, Lord Airedale, illustrated that. We have to remember that we are legislating to save children from accidents. The question of the owner of the horse is well covered in Clause 1(2)(c), which states: any person other than its owner who has custody of or is in possession of the horse immediately before the child rides it".

The Earl of Erroll

My Lords, under the terms of that paragraph both those people would be guilty of an offence. It is not a matter of one or the other. Both the owner and any person other than the owner who has custody could be prosecuted under the terms of the paragraph.

Baroness Nicol

My Lords, possibly they both could be prosecuted, but it is unlikely that prosecutions would be brought against an owner who was 1,000 miles away.

The Earl of Erroll

My Lords, that occurred in the case of Sweet v. Parsley in 1969.

Baroness Nicol

My Lords, we are on Report and I must press on and finish. I believe I have covered all the points I wanted to make. There is the question of opening the Bill to abuse. There are unscrupulous people who will use the phrase "without reasonable excuse" to avoid their responsibilities. I ask your Lordships once again to remember that we are legislating to protect children. In that case we must do everything to keep the Bill as straight, simple and clear as we possibly can. I hope that the amendment will not succeed.

Lord Monson

My Lords, before the noble Baroness sits down, will she tell the House whether she or any Member on the Labour Benches objected to the inclusion of these words in the Motor Vehicles (Wearing of Rear Seat Belts by Children) Act where precisely the same considerations as she has just advanced apply?

Baroness Nicol

My Lords, on this occasion I speak for myself and not for my noble friends. I was not present during the passage of the legislation on seat belts. I have not read Hansard and I do not know the answer to the question of the noble Lord. However, there does not seem to me to be a parallel case.

Lord Gisborough

My Lords, the noble Baroness said that she thought that the two people in question would not be prosecuted. That is marvellous if that is the case, but there is no reason why they should not be. We are not legislating for what might happen. A police force could bring such prosecutions.

Baroness Masham of Ilton

My Lords—

Lord Stoddart of Swindon

My Lords, I think perhaps I should speak before the noble Baroness. I must say first of all that I am surprised that my noble friend Lady Nicol is so rigid on this matter. I hope that the noble Baroness, Lady Masham, will not heed her advice and will accept this amendment. It is a most reasonable amendment and will give the protection to parents or other owners of horses that should properly be given to them. After all, the Motor Vehicles (Wearing of Rear Seat Belts by Children) Act 1988 was a Government Bill. Therefore one must trust that the Government knew exactly what they were doing. They introduced that protection because they thought it was reasonable to do so. The words of that Act bear repeating. New Section 33C(i) states: Except as provided by regulations a person shall not, without reasonable excuse, drive a motor vehicle", etc.

Both pieces of legislation concern movement. One is about driving a motor car and the other is about riding a horse. Both pieces of legislation concern the movement of people. This Bill concerns the movement of people and animals. Both pieces of legislation are about protection. One concerns the protection of children in the rear seats of cars and the other concerns the protection of children on horseback. I cannot therefore understand why the noble Baroness, Lady Masham, should refuse to accept the amendment. I sincerely hope that she will accept it. If she does not, all kinds of things may happen. I have heard of instances where magistrates have found it difficult to decide in cases of truancy whether parents were liable. The parents have rightly claimed that they sent their children off to school and threatened that there would be trouble if the children did not attend school. Nevertheless, the children did not attend school.

However, the magistrates in many cases still fined the parents, although there was no way in which for various reasons they could physically have pushed their children through the gates of the school. The parents may have had to attend work, for example. That is the kind of case that may well occur unless the amendment moved by the noble Lord, Lord Monson, is accepted.

The noble Baroness is an able and doughty debater. I have heard her criticise the Government Front Bench for rigidity on various other Bills. Therefore I hope that she will not take a Civil Service line in this case, read from her brief and say that she cannot accept the amendment under any circumstances. I believe that the amendment is reasonable. The noble Baroness should accept it and I am almost convinced that she will.

Lord Addington

My Lords, I have just one point to make. I should say that I am no lawyer. Clause 1(1) of the Bill states: it is an offence … to cause or permit a child under the age of 14 years to ride a horse on a road unless the child is wearing protective headgear". Do the words "to cause or permit" cover the point that is being raised? If that could be explained, it would clear up everything.

Baroness Masham of Ilton

My Lords, my noble friend Lord Monson has taken the wording from the legislation on child seat belts. However, that Act was framed in a very different way to this Bill. The Act provided for an absolute offence of carrying a child in a car when the latter was not wearing a restraint and where a suitable restraint was available.

There was, therefore, a need to provide a reasonable excuse defence where, for example, a driver was driving along a motorway, having ensured that his child was belted up. However, his child may find the release button after much struggling and release himself. A parallel case for the horse rider may occur where a dutiful parent has strapped a helmet to his child's head and told him to take care on the ride. However, as soon as the child is out of sight he decides the helmet is too hot and loosens the strap. The parent, however, has quite clearly not given permission to ride with the strap loose and cannot be prosecuted because in the Bill it is an offence only to cause or permit a child to ride a horse without a protective hat.

I can see no situation in which a responsible parent could reasonably require or permit a child to ride unprotected. A reasonable excuse defence is therefore unnecessary; it would serve only to reduce the effectiveness of the Bill. Therefore, I urge my noble friend Lord Monson to withdraw the amendment.

8 p.m.

Viscount Davidson

My Lords, it may be helpful if I intervene to say a few words about the amendment. The noble Baroness, Lady Masham, has explained the difference between this Bill and the Motor Vehicle (Wearing of Rear Seat Belts by Children) Act 1988. As the noble Baroness said, legislation is carefully drafted to allow for defences where they are considered to be reasonable. The advice of parliamentary counsel was taken in the drafting of the Bill as in others. There was lengthy correspondence on how "cause or permit" would be interpreted in the courts. The matter was also debated in another place and examined again afterwards. I hope that the noble Lord, Lord Monson, will accept my assurance that "cause or permit" is the best form of words in this instance.

Lord Monson

My Lords, before the noble Viscount sits down can he say whether the Government would accept in principle an amendment at Third Reading on the lines: "It shall be a defence in any prosecution brought under this section for the defendant to prove that he had taken all reasonable care"? Is that acceptable to the Government in theory?

Viscount Davidson

My Lords, with the leave of the House, as this is a Private Member's Bill I cannot give any assurances as to what the Government might or might not accept at another stage.

Lord Monson

My Lords, I am not very happy about this. I am extremely grateful for all the support that I have received from the noble Lord, Lord Gisborough, my noble friend Lord Erroll, and my noble friends—on this particular issue—Lord Airedale and Lord Stoddart of Swindon. Both the noble Lord, Lord Airedale, and my noble friend Lord Erroll cited legal precedents which I believe have a bearing in this case. The noble Viscount, Lord Mountgarret, did not object when those words appeared in the rear seat belts for children Bill, possibly for the reasons advanced by my noble friend. Nor did anybody on the Labour Benches object. I asked the noble Baroness, Lady Nicol, a semi-rhetorical question. I can tell her that I was present at all stages of that Bill and no objections were raised to the inclusion of those words.

It seems to me that the key word here is not "excuse" but "reasonable". A trivial excuse would get nowhere. I believe that if the phrase "without reasonable excuse" is left out prosecutions could be brought unjustly, despite the advice of parliamentary counsel. However, I am conscious of the fact that if I were to press the amendment tonight that would obviate any amendments being brought forward at Third Reading with the same general aim. Tempted as I am, in view of the great support that I have received tonight, to press the amendment I do not want to risk not being able to press an amendment at Third Reading. At that stage we might be able to tighten the definition still further so as to get round the technical objections that have been raised in connection with this amendment.

As I said, the key word is not "excuse" but "reasonable". It is only reasonable objections that would get anywhere. I am not convinced that the defence which it was suggested could be put forward by a potential defendent would work in every case. However, it is probably best to study what has been said and to take further legal advice. For that reason I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Interpretation]:

Lord Monson moved Amendment No. 2: Page 2, line 22, after ("foal") insert ("(over the age of five months)").

The noble Lord said: My Lords, at Committee stage the noble Lord, Lord Stoddart of Swindon, moved an amendment to delete the word "foal" from the list of animals to be included under the broad definition of "horse". I was happy to support him on the grounds that to legislate against non-existent dangers makes the law an ass. After all, nobody is going to put a saddle and bridle on an unbroken foal and ride it on grass, let alone on the road.

However, my noble friend maintained that, contrary to the expert advice that I have received—namely, that a foal ceases to be a foal and becomes either a colt or a filly at the age of six months—the upper age limit for a foal is in practice rather imprecise. It may be that her expert advice is more expert than my expert advice. I do not rule that out. However, that has only a minor bearing on the argument. The idea of riding a foal of nine or 12 months on the highway is almost as improbable as the idea of riding one of six months. Nevertheless, I decided to reintroduce an amended version of my earlier amendment to take the reservations of my noble friend Lady Masham into account.

To avoid the risk of being accused of tautology in the event of the upper age limit of the foal being indeed six months, I propose now an age limit for the purposes of this Bill of five months. That has the added merit of being the earliest age at which a foal can be weaned. Six months is more usual but foals can occasionally be weaned at five months.

As I see it, there is only one objection which the Department of Transport could raise to the proposal. The department believes passionately in the scientific maxim that whatever can happen sooner or later will happen. In other words, however unlikely it seems today that someone will ride a young foal on the highway, at some unspecified time in the future somebody is sure to do so. If that is to be the argument, in order to be consistent I shall have to move Amendment No. 3 to include zebras in the Bill. This may be a good moment to discuss Amendment No. 3.

There are a number of things not all of your Lordships will know about zebras. The first is that they are definitely members of the horse family, just like asses. Biologically, a zebra is closer to a horse than is an ass. The second is that although it is difficult to break in and train zebras for riding, it has been done on occasion. I understand that in the 19th century a Member of your Lordships' House was in the habit of driving a four-in-hand in which the horses had been replaced by zebras. Between the wars some intrepid white settlers in the Happy Valley of Kenya occasionally rode zebras, although I do not know whether they stayed on very long.

Thirdly, zebras can be crossed with both horses and asses. The resulting hybrids are probably somewhat easier to break in and train than zebras are: that is another possibility that ought to be covered. The fourth point, which has a bearing on a matter we discussed at some length in Committee, is that Huxley, writing in 1862—there were very many more mules and pack animals working in Britain at that time than there are today when they are practically non-existent—stated: It is a very rare thing to see a Hinny in this country".

From that, given how things have changed in the past 128 years, the conclusion must be that there are many more zebras in Britain than there are hinnies. So, if such improbable and unlikely mounts as young foals and hinnies are to be covered by this Bill, just in case someone at some unspecified time in the future may ride them, certainly zebras ought to be included. For the moment, I shall revert to Amendment No. 2. I beg to move.

Lord Addington

My Lords, we are going over a little of the ground that we have already covered in Committee. The noble Lord, Lord Monson, said that he had not heard of anybody riding a foal. He asked me at Committee stage whether I had heard of anybody riding a foal. I said no but that if I waited long enough, I was quite sure that I should do so. I am equally sure that there will be some idiot out there who is prepared to put a small child on a small animal—a foal. As I said before, that damages the foal and we must think of protecting the animal as well as the child. The likely result of a small child on the back of such a young animal is that the animal will dislodge the child. There will thus be the situation of a soft skull meeting a very hard pavement.

With regard to Amendment No. 3, I agree with the noble Lord. Every conceivable kind of equine quadruped should be covered by the Bill. Should the noble Lord move that amendment, I shall support it.

Baroness Masham of Ilton

My Lords, at this stage, to save the time of the House, I should like to put forward a proposition which may please my noble friend Lord Monson. Having given thought to foals and zebras, perhaps I could bring back an amendment at Third Reading to include the definition used in the Farriers (Registration) Act 1975, which would be comprehensive. The definition reads: 'horse" ' includes pony, mule, donkey or other equine animal". That would include all ages and all equine animals.

Viscount Davidson

My Lords, if the noble Baroness were to table such an amendment at Third Reading, the Government would support it.

Lord Monson

My Lords, it is nice to get somewhere at last. It is not that I feel very strongly about this point; but it seems sensible. I do not think, as the noble Lord, Lord Addington, suggested, that anybody would put a saddle and bridle on a foal and take it onto a public road: that is what we are talking about. We are not speaking about perching a child on a foal of under five months in a field in order to take a photograph, even assuming that that could be done, holding the foal by a halter. We are talking about taking an animal onto a public highway. I think it is extremely improbable.

However, if my noble friend will, as it were, rewrite that clause of the Bill so as to bring in the definition—

Lord Stoddart of Swindon

My Lords, I am grateful that the noble Lord has given way. Before he accepts that proposition, I hope he understands that it will extend the scope of the Bill. I thought that he and I wanted to narrow its scope.

Lord Monson

My Lords, that is perfectly true. I should indeed like to narrow it, certainly so far as concerns exempting people who act in good faith. With regard to the range of animals, I rather feel that we lost that battle last time round. I wish that that were not the case and that the rest of the Committee had seen the force and merit of our arguments but it did not seem to do so. At this stage or at Third Reading it would be a waste of time to pursue that point.

If the Bill is to pass into law, it ought to be sensible and comprehensive. There is a school of thought which maintains that it is far better not to improve a Bill of whose objects one basically disapproves because the more anomalies and inconsistencies there are in it, the more silly it will look on the statute book and the less attention people will pay to it. However, one must be responsible about these matters. It is probably sensible to accept the offer of my noble friend Lady Masham although, as I said, I do not feel very strongly about this point. It is logical, given that the department feels that every conceivable contingency must be covered just in case.

For that reason, unless my noble friend wishes me not to withdraw this amendment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Viscount Ullswater

My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 P.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.15 to 8.35 p.m.]