HL Deb 30 October 1995 vol 566 cc1292-310

4.5 p.m.

The Earl of Northesk

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.—(The Earl of Northesk.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMIITBES (Lord Brougham and Vaux) in the Chair.]

Clause 1 [Offence]:

Lord Kimball moved Amendment No. 1:

Page 1, line 16, at end insert ("but not to any gutter or ditch of, or in or adjacent to, any road or path").

The noble Lord said: In moving this Amendment, perhaps I may speak also to Amendment No. 2. It deals with the same point—where a ditch or a gutter is not available. The object of the first amendment is to ensure that it is not an offence for a dog to spend tuppence in a ditch or a gutter beside a path or a road in an area which has been designated by a local authority as an area in which your dog should not spend tuppence. The second amendment seeks to ensure that where a ditch or a gutter is not available, the local authority should provide within the area of land that has been designated a suitable receptacle into which the offending dog mess can be put. That is the point of both the amendments. I beg to move.

Lord Simon of Glaisdale

I am very glad that the noble Lord, Lord Kimball, has moved his amendment. This is a very far-ranging—in some ways extraordinary—Bill. It creates an offence of strict liability. In other words, the owner of a dog may be liable to a swingeing fine even though he knows nothing of the offence and is in no present position to prevent it.

The fouling of sidewalks by dogs is extremely unpleasant and unhygienic. If we had any doubt about that we would have been persuaded by the clear and attractive arguments which the noble Earl put forward in moving the Second Reading of the Bill. However, as I said, the Bill goes very far indeed. It centralises the offence in place of it being the subject of by-laws. Not only that, it creates a very wide offence, leaving it to the Minister, with exiguous parliamentary control, to make exceptions. That is the old dispensing power of the Crown which was found so objectionable in Stuart times and was finally disposed of in the Glorious Revolution and the Bill of Rights.

As I say, the Bill makes the fouling by dog faeces of any land open to the public an offence. The Committee may believe that we have much too much legislation in any event and that we have been creating new criminal offences every Session that we have had in recent times. That is sufficient to make the Committee at any rate wish to scrutinise very carefully these kinds of provisions. The noble Lord, Lord Kimball, has moved this amendment at a very late stage in the Session—the Bill comes before the Committee at a very late stage—and that may weigh with him in deciding whether to ask your Lordships to divide on the matter. But that does not excuse us from passing the measure through on the nod without any question.

This is in fact a government Bill although it was moved by a Private Member in the other place and by the noble Earl himself in your Lordships' House. It bears all the marks of a Whitehall Bill, which is handed to a Back-Bencher who has been lucky in the ballot. As I say, it goes extraordinarily far in creating a very wide offence subject only to a dispensing power.

There is one other initial matter which I should mention before we come to the specific proposal in this amendment. It was raised at Second Reading by, I believe, the noble Viscount, Lord Falkland; namely, its effect on foxhunting. It is the local authority which is given power under this Bill. We have had examples of local authorities inimical to foxhunting who have used powers in order to hamper that country sport. That has been done in the West Country. The decision was challenged in the High Court. The local authority appealed and failed in the Court of Appeal.

As I have said, this measure could be used—I do not doubt that it would be used—by a local authority unfriendly to foxhunting in order to allow the hampering of that country sport. The recent White Paper on rural England, which we are to debate next week and which has been very favourably received, expressly welcomes country sports. If we are to see foxhunting abolished or suppressed, it should be done openly by Act of Parliament and not by the back door through the misuse of powers under Bills such as this.

There is one other preliminary matter that I wish to mention. As the noble Earl explained at Second Reading, this Bill centralises powers that at the moment are exercised in some cases by by-laws, so that the whole matter is governed by a Whitehall Act of Parliament. Is it altogether right to assume that central direction by Act of Parliament is superior to a by-law? A by-law is a local law of the locality. It is a local authority which makes the by-law and which knows local conditions. This Bill takes account of and enforces a criminal offence, notwithstanding the wide variety of local conditions. Having given a Second Reading to this Bill, albeit in circumstances to which the Salisbury convention does not apply, we are bound to accept that by-laws shall be abrogated in place of this measure. That is an additional reason why we should regard this Bill with close scrutiny.

The recent White Paper on rural England drew attention to the desirability of local authorities, not least parish councils, having powers in the locality. After all, a by-law is a legislative subsidiarity. One of the most notable achievements of the Prime Minister at Maastricht was getting the principle of subsidiarity written into that treaty. Subsidiarity, like charity, begins at home. We should apply it domestically.

Having said that, I turn to the amendment of the noble Lord, Lord Kimball. That excepts defecation in a gutter or a ditch. Many well-trained dogs are trained to defecate in gutters and ditches. They are channels for collecting rainwater and sweeping away waste products with it. Surely, that is a very reasonable exception. I hope that the noble Lord will accept the amendment but, as I say, if he does not, he will need to give some cogent reasons why defecation in a gutter or ditch should be a criminal offence committed by the owner of a dog who may know nothing about the committal of the act of defecation and be in no position to prevent it. He will then be liable to a fine of £1,000 under this Bill. Under those circumstances I welcome and support this amendment.

4.15 p.m.

Lord Campbell of Alloway

Somehow or other, we seem to have got on to foxhunting, the abrogation of by-laws and some serious constitutional problems. I do not believe that any of those are relevant to this discussion. I hope that the noble Lord will be able to accept this amendment. It relates to one aspect of this Bill brought from the Commons. That aspect has to be seen in the general context of the problems arising, some of which are comprised in Amendments Nos. 2 and 3 of the Bill.

In many respects, the common law has for a long time recognised the absolute liability of owners for certain antics of their animals. Although a dog may have one bite—unless it is one of the dangerous dogs (as defined by statute) of the noble Lord, Lord Houghton of Sowerby—it may not have one defecation within the meaning of Clause 1(1) without exposing the person who is in charge", who is, in fact, not in charge, to prosecution by reason of the presumptions in paragraphs (a) and (c) of Clause 1(6) of what I call "the dirty dogs Bill".

My noble friend Lord Kimball has asked me to have a look at the Bill and the amendments. I assure the Committee that no question of payment arises—although a dram or two might not be unacceptable, but if it were a bottle or a hogshead, that would have to appear on the proposed register. Will not that become a total nonsense for your Lordships' House?

Reverting to the amendment, I wonder whether my noble friend the Minister has ever lived in Kensington in the vicinity of Kensington Palace and whether he has ever owned a Chow dog. If he has, he will know that there is a secret meeting of Chow dogs every morning—or there was about 10 years ago. The Chow dogs leave their homes and cross the roads, having learned to do so, and then meet together in a circle (more or less) in Kensington Gardens. It is not so easy to identify individual Chow dogs because they do not take kindly to anyone handling their collars or to whatever else their identification is fixed, and they all look alike. If my noble friend were to say, "Why not keep the wretched dog at home?" I should say, "Just try keeping a Chow dog at home". It seems to me that this is a somewhat unrealistic Bill in practice and that imposing a level 3 maximum fine is assuredly making a mountain out of a molehill.

Lord Lucas

I shall confine myself to Amendments Nos. 1 and 2 which, if I understand my noble friend correctly, we are to discuss. We are not sympathetic to either of the amendments. Amendment No. 1 would exclude any gutter or ditch from land to which the offence of failing to clear up after one's dog applies. In the past it was considered acceptable for dogs to foul the gutter. Indeed, going further back it was acceptable for humans to foul the gutter. We believe that that is no longer the way in which people think. Those of us who have lived in central London for any length of time will have experienced much discomfort from finding that dogs have been in the gutter before us.

Furthermore, we do not think that it should be forbidden by the Bill for a local authority to outlaw defecation in a ditch. Dog faeces which are deposited on dry land are disposed of quickly and efficiently by invertebrates. If disposed of in a ditch, they will dissolve, cause eutrophication and destroy the wildlife in the immediate vicinity. It is generally a much less ecologically acceptable means of disposal. We do not believe that the Bill should require local authorities to exempt defecation in ditches if they feel that that would be undesirable in the particular circumstances.

Amendment No. 2 places a requirement on local authorities to provide bins for the disposal of dog faeces on designated land. We are not sympathetic to that amendment. Under the dog fouling by-laws, there has never been a requirement to provide bins. The dog faeces are the owner's responsibility, not the council's. My noble friend would presumably not seek to argue that it is alright to drop litter if there is no convenient litter bin. We think that the same argument applies to dog faeces. The adoption of the amendment would force local authorities to bespatter town and country with dog-mess bins. We do not find that prospect financially, visually or nasally acceptable.

Lord Simon of Glaisdale

Before the noble Lord, Lord Kimball, rises to reply on the amendment, may I ask the Minister about the second amendment? Does not the Bill impose a duty on the dog owner? The noble Lord, Lord Campbell of Alloway, called it "absolute liability"; I call it "strict liability". They mean the same thing—that the dog owner is responsible whether or not he knows that the act has been committed and whether or not he can prevent it. I ask the Minister to answer that question with a yes or a no because I think that it can be so answered.

It is a defence if the person in charge of the dog removes the faeces into a receptacle, but there is no provision that any receptacle for that purpose shall be provided. I see that the Minister nods in acquiescence. That is how I read it. Moreover, it is no defence that there is no utensil available to the person in charge. Surely if it is a requirement to remove the faeces into a receptacle, we cannot really expect dog owners to go around carrying receptacles for that purpose. Does the dog owner also have to carry a shovel and a dust pan and brush? Does he have to provide every member of his family who might walk the dog with rubber gloves or surgical gloves? I trust that the Minister will tell us the answer to those questions given that he is proposing to brush off most of the amendments.

Finally, I note some element of schizophrenia between whichever departments or branches of departments have prepared the Bill and the White Paper which has recently been presented.

Lord Campbell of Alloway

As this is Committee stage, perhaps I may say briefly that in view of what the noble and learned Lord has just said, I think that my noble friend the Minister ought to be in a position to give some constructive and satisfactory reply.

Lord Lucas

I do not quarrel with most of what the noble and learned Lord, Lord Simon of Glaisdale, said. Perhaps I may amplify it, however, by saying that an owner has a defence of reasonable excuse and that no offence is committed if he removes the faeces. All that I can offer the noble and learned Lord is my personal advice and suggest that he does what I do—

Lord Simon of Glaisdale

Can the noble Lord say what he regards as a reasonable excuse?

Lord Lucas

That must be for the courts to decide. I can only offer the noble and learned Lord the advice to do what I do. I carry a plastic bag in my pocket and use that to pick up the dog faeces. All that he needs to do is to be careful that it is not one of the plastic bags which supermarkets provide for packing vegetables in because they have small holes in the bottom.

Lord Mancroft

Before the noble Lord sits down, I had not meant to intervene but I cannot now resist it having heard the debate. For clarification, is the noble Lord really suggesting that a gutter or ditch is no longer the right place for a dog to empty because it has been the right place for many hundreds of years past? If it is suddenly not to be the right place, where else in London or other cities when one is not close to a park, and where it cannot be done anyway, would the dog do it?

4.30 p.m.

Lord Lucas

It does not matter where the dog does it so long as the owner clears it up.

Baroness Hamwee

We seem to be straying back to the fundamentals of the Bill rather than the amendments. While I understand that many Members of the Committee may view these things differently, as the Minister said, life moves on. There are different views as to what is now appropriate and hygienic. There are many parents of young children, as well as older people, who find it offensive to have to cope as pedestrians with dog fouling in the streets.

I am an urban person. I cannot talk about the countryside, but it is a major problem in our cities not just in the streets but in playgrounds. There are serious diseases related to dog fouling. I applaud the Minister for having taken such a firm and blunt stand with those Members of the Committee who, if I may say so without intending to be offensive, may be a little more old fashioned about these things than are some of the public.

The Earl of Northesk

Like my noble friend the Minister, I shall attempt to confine my remarks to Amendments Nos. 1 and 2. As I explained on Second Reading, one of the primary purposes of the Bill is to rationalise and simplify the existing procedure for making by-laws with respect to dog fouling. In that context, an overarching principle which has guided its drafting has been a conscious attempt to carry forward the model by-laws, for all intents and purposes unchanged, onto the face of the Bill.

Thus, there is little enough in the Bill that cannot already be achieved by a local authority under the by-law-making procedure. That is an important point for the Committee to understand. Furthermore, the Bill's provisions will be exercised locally under the direction of any regulations made by the Secretary of State, which I hope will go some way towards resolving the difficulties expressed by the noble and learned Lord, Lord Simon.

With that in mind, the first point I should like to make with respect to Amendment No. 1 is that local authorities can already create no-fouling areas in gutters. Accordingly, far from rationalising the existing procedure, which is the Bill's desired effect, the amendments would considerably diminish the Bill's effectiveness. There is a consensus, certainly in urban areas, that dog-fouling is a serious problem that requires a more efficient and enforceable means of redress. Therefore I find myself unable to sympathise with my noble friend's amendment which, notwithstanding its good intentions, would clearly serve to undermine the procedure already in place.

As my noble friend has explained, the intent of Amendment No. 1 is to prevent local authorities being able to designate gutters and ditches as areas where the offence of dog fouling would apply while maintaining their ability to designate the carriageway, the highway, the verges and any adjacent footpath. That would create an anomalous and wholly confusing situation not merely for those upon whom responsibility for enforcement will fall but for the dog-owning public. For example, would an offence be committed if a dog's stools straddled the gutter and the kerb? Would dog owners, secure in the knowledge that they could not be prosecuted for failing to clear up their dog's mess in a gutter, seek to sweep such mess into such a location or even consciously train their dogs to do their business in gutters?

Despite some of the comments made by Members of the Committee today, faeces deposited in the gutter are not necessarily swept away. This summer's drought is evidence of that fact. I would hope that with those points in mind my noble friend might feel able to withdraw Amendment No. 1.

In common with Amendment No. 1, Amendment No. 2 also represents a departure from current practice with dog-fouling by-laws which, as I have already said today, the Bill is intended to replace. As my noble friend the Minister said, under current practice there is not, and has never been, a requirement to provide bins for the reception of faeces removed from the land. As my noble friend has so rightly identified, it begs the question as to whether the provision of such bins should be a requirement placed upon local authorities. Such a statutory requirement may result in dog faeces bins attracting the same level of opprobrium and ridicule that roadwork cones may have engendered in the public in the past. We would have ubiquitous bins sprouting up, with no apparent purpose or methodology underlying their location.

Accordingly, what should lie at the heart of our thinking with respect to this issue is a recognition that local authorities themselves are best placed to identify where in their areas bins may be most usefully and effectively sited. After all, they have such flexibility with regard to the provision of litter bins, and so it is entirely appropriate and reasonable that the same flexibility should persist with regard to the provision of dog waste bins.

Good legislation has about it the character of pragmatism and practicality. If the price that a local authority has to pay to enforce its dog-fouling powers under the Bill is the blanket provision of dog faeces bins, it is a price which many, if not all, authorities would be reluctant to pay. Financial considerations would represent one aspect of their thinking, but what is more important, the cost in terms of time of fulfilling such an obligation would be so high as to render the Bill unworkable. In the light of those comments, I hope that my noble friend may not feel the need to press the amendment.

Lord Kimball

I am most grateful to my noble and learned friend Lord Simon for his support for these two amendments. We can summarise his feelings. He objects to what I would call the urbanisation of the countryside. I believe that all Members of the Committee were sympathetic when he stressed the importance of local people and the parish councils being consulted about any of these designations. I share his disappointment when he said that he found no cogent reason given as to why the amendment should not be accepted.

I am grateful to my noble friend Lord Campbell for pointing out the unrealistic nature and the difficult practice required by the Bill. I hate to have to say so, but many of us on this side of the Committee found the reply of my noble friend the Minister on behalf of the Government a little disappointing. As he said, he gave us the brush-off. We shall have to return on Report to the whole problem, as the promoter has said, of there being a little flexibility on the whole question of the provision of bins.

I should hate anyone to think that we on this side of the Committee were not sympathetic to the important and realistic point made by the noble Baroness, Lady Hamwee. There are some pretty nasty diseases, including blindness in children, associated with this problem. That is why we must proceed with care. I am most grateful to my noble friend, the Bill's promoter. Throughout our discussions he has been nothing but helpful and flexible. He has tried to meet our objections. It is because of that spirit and what he has already said about preparing to be flexible about the provision of dog shit bins, as against litter bins, that with the Committee's permission I shall beg leave to withdraw the amendment and come back to the matter on Report.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Viscount Allenby of Megiddo moved Amendment No. 3:

Page 1, line 18, leave out ("3") and insert ("1").

The noble Viscount said: I was not able to speak on Second Reading, but I accept the need to rationalise the law on dog fouling and, above all, to promote responsible dog ownership. The Bill makes it an offence to fail to pick up dog excrement in a designated area. The purpose of the amendment is to lower the proposed maximum fine set at level 3 (currently £1,000) to level 1 (currently £250).

The amendment has been tabled because it is felt strongly on both sides of the Committee that the fine is absurdly high for the gravity of the offence and in relation to other offences which it effectively devalues. For example, it is the same maximum fine as that for kerb crawling, causing harassment, alarm, or distress, cock fighting, failure to keep a dangerous dog under control, throwing missiles or chanting racist abuse at a football match, placing a wire or rope across a highway, throwing stones or missiles at a train or killing an animal with a crossbow or automatic weapon. It is a higher fine than that for vagrancy, breaking up a public meeting or animal offences such as failing to inspect traps or selling a pet to a child. We consider that the maximum fine should be at level 1 on a standard scale, with a maximum fine of £200.

It has been suggested that doubling the £500 maximum fine allowed under the by-law system is justified because it brings dog fouling into line with the provisions of the Environmental Protection Act for litter offences. While we may be dealing with an aspect of our environment, we are not dealing with litter but a natural function of our dogs. Littering is a flagrant and intentional abuse of the environment, while it is not so clear that the same is true of dog defecation. As W. S. Gilbert said in "The Mikado": Let the punishment fit the crime".

I beg to move.

Lord Campbell of Alloway

I briefly support the amendment, largely for the reasons that I have already given. There must be a proportionality about punishment. Here we are dealing with an absolute liability or a strict offence. That is why I bored the Committee with the Chow dog secret society in Kensington Gardens. The owners are simply not there; they are not in charge. That presumption works harshly. I hope that the Minister is able to accept the amendment which in a situation of strict liability for a first offence must surely be sufficient.

Lord Clifford of Chudleigh

This is a very sound amendment. There are two or three points which the Committee may wish to consider. First, anybody whose dog may have committed the offence could report someone else to avoid paying the fine. Secondly, £200 is possibly more acceptable to a lot of people's pockets than £500. Finally, there is something called a "threat". Someone may see another person's dog defecating and say, "I am going to report you". The person whose dog has defecated could turn around and say, "Right, I am going to smash up your car. I am going to break your windows". There are many aspects to be considered. This whole legislation is being rushed through far too quickly. I think this is a very good amendment.

Lord Campbell of Alloway

I hope that the Minister will treat the last contribution of the noble Lord as wholly irrelevant to this discussion.

4.45 p.m.

Lord Lucas

We do not feel that level 1 is a suitable level for the fine in this case. Indeed, we do not feel that level 1 is suitable for any new offence. It is not being proposed or thought of currently for any new offence of any description. That is because in practice it produces actual fines of a derisory level. We are talking about the maximum level, not the fine which will be levied by the courts. In those circumstances, we cannot support the amendment.

The Earl of Northesk

As the noble Viscount, Lord Allenby, explained, the effect of the amendment would be to reduce the maximum penalty for the offence of dog fouling from level 3 to level 1. I indicated on Second Reading my belief that the maximum fine at level 3 is appropriate for the offence in Clause 1. Notwithstanding the eloquent arguments of Members of the Committee, I retain that belief.

It is no doubt to my discredit that I did not put this matter into proper perspective on Second Reading. But I hope now to redress that error on my part.

First and foremost, the current maximum fine under existing by-laws is set at level 2. To my mind it would be foolish to seek any diminution from that established precedent, if only because it would act as a disincentive to local authorities availing themselves of the powers which the Bill would grant them. In effect, a maximum level 1 penalty could mean that local authorities would continue to use by-laws which would negate one of the Bill's primary purposes; that of rationalising and simplifying existing procedure.

Of course I understand the anxieties of the noble Lord with regard to the consistency of levels of fines. It is important that like should be accorded the same treatment as like. However, comparisons are odious. In this context, there is a very real sense in which those who have the misfortune inadvertently to encounter a dog's mess are quite literally subjected to harassment, alarm or distress.

Furthermore, it is worth noting that there is a currency of opinion which believes that failure to clear up after a dog is worse than dropping litter, despite the arguments of the noble Viscount. However, the latter offence carries a maximum penalty at level 4 rather than level 3. Perhaps more telling is the fact that failure to have a collar or identification on one's dog when in a public place carries a maximum penalty at level 5.

Nor should we lose sight of the fact that the Bill seeks to establish also a system of fixed penalty notices, currently set at £10 for the offence of fouling. In such circumstances, it is entirely reasonable to suppose that only the most persistent and recalcitrant offenders will find themselves prosecuted in court and thereby expose themselves to the maximum penalty at level 5. Of course it will be for the courts to determine the actual level of fine, which in all likelihood will be rather less than the maximum in the vast majority of cases, due heed being paid to the particular circumstances of the case.

With those points in mind, I do not perceive that the proposed regime is anything other than utterly fair. I suggest respectfully to the noble Viscount that level 3 is the appropriate level for the maximum fine. On the basis of my remarks, I hope that the noble Viscount will concur with me and withdraw the amendment.

Viscount Allenby of Megiddo

I thank all Members of the Committee who have supported the amendment, and in particular I thank the noble Lord, Lord Campbell of Alloway, for his comment.

I thank also my noble friend for his comments. I agree with him that the legislation has been brought forward too quickly, without proper consideration. However, having said that, I am grateful to the noble Earl, Lord Northesk, for his very full reply to my amendment. I shall study his reply carefully but I believe that it makes sense. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Allenby of Megiddo moved Amendment No. 4:

Page 2, line 4, leave out from beginning to ("not") in line 5.

The noble Viscount said: Under Clause 1(6)(c) a person may not use the excuse that he was unaware that his dog had defecated in a designated area. That seems unacceptably draconian. While it is true that dog owners should reasonably be expected to be responsible for all the activities of their dogs, there can be few criminal offences committed completely unwittingly by a person. Such a person would commit such an offence even if he had known that his dog had defecated in a designated area and had taken steps to remove the faeces.

We have all known of occasions when our beautifully trained dogs have run off after a rabbit, or even in an urban area after a dog of the opposite sex. Having failed in its quest, it then defecates out of one's sight. Should the owner whose dog commits such an act really be liable to prosecution?

The justification for removing that excuse was made by the noble Earl on Second Reading when he attempted to define what is meant by responsible dog ownership. He said: The rationale is quite simple. Responsible dog owning is about having control of one's pet at all times. By implication, if one is unaware of its actions one does not have adequate control of it".—[Official Report, 19/10/95; col. 848.]

I am not certain whether that definition is applicable to dog owning in all circumstances. Many owners in rural areas lose sight of their dogs and thus, under this definition, would be deemed to lose adequate control of it".

Sadly, I fear that we have another instance here of the towns preaching to the countryside. The Pet Advisory Committee has suggested that the being unaware of defecation excuse would become a common defence and that prosecutions would become difficult and costly.

When we are considering legislation our purpose is not simply to ensure that the offence will result in many prosecutions, but to protect the rights of individuals. One could envisage existing Acts of Parliament which would make legislation more effective; but, thankfully, we do not legislate for that purpose alone and consequently live our lives according to rules and not terror. The amendment would remove that dangerous element from the Bill. I beg to move.

Lord Simon of Glaisdale

I was going to ask a question on subsection (5) of the clause when we came to discuss clause stand part, but I think that it arises squarely on the amendment moved so ably by the noble Viscount. As I read the Bill, it creates an offence of strict liability. As your Lordships know, most criminal offences require some mental element. But, occasionally, there are offences of strict liability where someone is held to be liable notwithstanding the fact that he knows nothing about the offence and can do nothing presently to prevent it. A typical example is selling alcoholic drinks to someone who is under age. The owner of the public house is responsible for his servants observing that rule, notwithstanding that he knows nothing of the offence and cannot really, except by general ukase, prevent it.

However, that is something very different from the Bill. Are we really justified? Is the offence such an enormity that one has to create another offence of absolute or strict liability? That is the question that I had intended to ask the noble Earl, but I suspect that he might prefer it to be answered by the Minister.

Lord Lucas

As the noble Viscount indicated, we are concerned that, if the amendment were accepted, all a dog owner would have to do is ensure that he was not around when his dog defecated. We believe that that would probably defeat the purposes of the Bill.

Lord Simon of Glaisdale

Can the Minister say whether or not the Bill covers the following situation? Let us suppose that a dog owner allows his wife son or daughter to walk the dog and defecation takes place on land—albeit, we now know, in a gutter or a ditch—is he to be liable? Would he be liable to a level 3 fine of £1,000? Even though the owner knows nothing about it and merely allows a member of his family to walk the dog, is he to be held liable?

Lord Lucas

My understanding of the Bill—and I am open to correction by my noble friend—is that the person who is liable for the fine is the person in charge of the dog at the time. If a defecation happened in a situation where the person in charge of the dog could not possibly have been aware of it, that person would have access to the defence of reasonable excuse, though I cannot prejudge how that would go in the courts.

Lord Earl of Northesk

Perhaps I may deal first with the query from the noble and learned Lord, Lord Simon of Glaisdale. In the scenario that he painted, the actual owner of the dog—that is, the man who is permitting a member of his family to walk the dog—would not actually be liable. The situation is covered under Clause 1(6)(a) which states: For the purposes of this section—

  1. (a) a person who habitually has a dog in his possession shall be taken to be in charge of the dog at any time unless at that time some other person is in charge of the dog".
I hope that that satisfactorily answers the question posed by the noble and learned Lord.

Notwithstanding the lucid comments of the noble Viscount, Lord Allenby of Megiddo, when moving the amendment, I am unconvinced that this underlying principle of dog ownership should be in any way compromised or subordinated by the amendment. Viewed pragmatically, Clause 1(1)(a) provides the very wide defence of "reasonable excuse for failing" to clear up after one's dog on designated land. The purpose of Clause 1(6)(c) is simply to clarify that the person in charge of the dog in question at the time could not plead ignorance as to its whereabouts, whether or not as part of a reasonable excuse defence. That strikes me as being eminently sensible and appropriate as a mechanism for promoting responsible dog ownership.

If accepted, the amendment would undermine another of the Bill's primary purposes—that of making the rather untidy and cumbersome corpus of dog fouling by-laws very much easier to operate. An owner could simply turn his back and say that he did not know about the defecation, thereby diminishing the enforceability and effectiveness of the legislation.

I am conscious, too, that a number of noble Lords, including my noble friend Lord Soulsby and the noble Viscount, Lord Falkland, and others, referred to strays on Second Reading. While the issue of dog registration is of course beyond the remit of the Bill, as drafted it provides local authorities with the ability to take action against owners of so-called "latch-key dogs"—that is, those who let their dogs roam the streets and foul at will. Acceptance of the amendment would render local authorities powerless against such irresponsible strands of dog ownership.

I am also conscious that part of the problem here concerns the distinction regarding the urban environment, the built environment and the countryside. That is a particularly difficult question to answer in this context. I hope that the noble Viscount will actively seek to bear with me on the matter and perhaps we may return to it on Report. I understand the noble Viscount's concerns, but I believe that it would be quite an easy span for us to bridge if we could sit down and have a chat about it.

Responsible dog owners do know what their dogs are doing, certainly in urban situations. Therefore, that aspect of the Bill will not affect them. It is aimed at irresponsible dog owners who do not care that their dogs foul public places which then have to be cleaned at public expense. Why should not such irresponsible owners be called to account for the fouling by their dogs and the offence it causes?

In conclusion, to press the amendment would be akin to suggesting that motorists who have committed the offence of speeding should have the defence of pleading that they did not see or were ignorant of the signs indicating the speed limit. Clearly such a state of affairs would be undesirable, as indeed would be the case with the Bill before us today. Therefore, I hope that the noble Viscount will be prepared to withdraw the amendment, especially in the light of my stated intention to discuss the matter further with him prior to the Report stage.

The Earl of Harrowby

Before my noble friend sits down, would he kindly explain to me what would happen if, under Clause 1 (6)(a), the person in charge of the dog were below the age of criminal responsibility?

The Earl of Northesk

My noble friend has rather caught me on the hop. Perhaps I may consult on the issue and get back to him.

Viscount Allenby of Mediggo

I should like to thank all noble Lords who have taken part in the debate, especially the noble and learned Lord, Lord Simon of Glaisdale, who, if I may put it in a slightly succinct way, has opened a can of worms. Basically we have two situations before us: the first is the urban environment where I quite understand the concern about people who allow their dogs to drop faeces all over the place thus rendering it very unhygienic.

My mind then turns to a farm which is owned by a local council, which could be a designated area, where there are chickens, cows and rabbits running around yet the poor old dog has to be locked up because it is not allowed to perform its natural function. But having said that, the promoter of the Bill has made a sound defence of it, and with his offer of discussing it further—we should do that—I reserve the right to return to this matter on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

On Question, Whether Clause 1 shall stand part of the Bill?

5 p.m.

Lord Simon of Glaisdale

I indicated that I had one question to ask on subsection (6). I raised this matter when we were discussing the amendment moved by the noble Viscount. If some of us were less than enthusiastic about the reply that we received from the Minister and from the noble Earl who is the promoter of this Bill, that is neither here nor there: we were answered. However, I wanted to raise another question as regards subsection (5) and that is the dispensing power given to the Minister. Presumably the department which is so enthusiastic about this Bill has some idea of what exceptions the Minister will make by ministerial order. I believe that on Second Reading the question of sheepdogs was raised. Presumably they would constitute an exception. One would hope that was the case at any rate. Will the noble Earl—even if he passes this matter to the noble Lord, Lord Lucas—indicate what other exceptions the department has in mind? Your Lordships are entitled to know that when the Minister is asking for a wide dispensing power from an Act of Parliament which itself goes very far and very wide.

Lord Clifford of Chudleigh

I realise that the previous amendment was not moved but I wish to refer to a couple of points. I repeat that there are 7.5 million dogs in the country and there are 5 million dog owners. I understand that education in primary schools is leading young people to want to have even more dogs and that will promote a greater demand for puppy farms. Puppy farms have an appalling reputation, certainly as regards what happens over the Christmas and Easter periods. When stock has not been sold it is put on a slag heap. Will the Minister confirm whether or not it is intended to promote such education in primary schools?

I was positively shocked at the Minister's earlier response as regards picking up faeces in a plastic bag. I wish to know whether the Minister will also carry gloves in his pocket so that he can put his gloves on before he puts the faeces in a plastic bag. We need to understand that the faeces constitute only one part of the chain of disease. I believe another noble Lord referred to this matter. Faeces carry worms and eggs, and the eggs last a long time and are sticky. I referred to my next point on Second Reading. The eggs I am discussing stick to children's hands. We know that children touch their bicycles which may have come into contact with dog faeces. Children also touch their shoes which may have been in contact with dog faeces. In that way children may contract the disease ocular larva which causes impaired vision. I of all people know about impaired vision because I suffer from severe visual impairment. I beg all Members of the Committee to consider this matter of dog faeces with greater care. The Canine Crisis Council has proved that dog faeces affect young children to a far greater extent than adults because young children cuddle dogs far more than do adults. I referred to this matter earlier. The cuddling of dogs is being promoted in primary schools. However, we need to be more aware of the problems this may cause.

I have already spoken about the materialistic approach of puppy breeding. We need to consider the materialistic aspect as regards sponsoring bins in which dog faeces can be put. The Government cannot shake their heads and say they do not want to force councils to adopt that measure. The Committee will be aware that not only dog owners but also cat owners and goldfish owners pay council tax. However, it is the dog owners who are being addressed by this Bill. There are 5 million dog owners in this country. To deal fairly with this matter we must consider it as part of a much larger Bill. As I have said before, this matter needs to be covered in a dog registration Bill. As the noble and learned Lord, Lord Simon, has said, we need to cut down on the amount of legislation we produce.

Certain European countries have regulations on the use of "poop scoops". We rely on encouraging inadequately funded local councils to clean up dog faeces. We never stop hearing about the inadequate finances of the National Health Service but why increase the burden on that service through dog transmitted diseases? Human toxocariasis may result in blindness. However, dog faeces may also transmit a disease which affects the liver. It is not just sheep whose livers are affected by certain eggs; human beings may also suffer this fate.

Tomorrow this Chamber will consider the Wild Mammals (Protection) Bill. Surely we cannot believe that disease carried by domestic dogs will not be transmitted to wild mammals and vice versa. The Government have studied the live transportation of calves and sheep—let us not forget horses, donkeys and various other animals—but surely we as a nation should clean up our own mess at home before bragging about our environmental commitment and our concern for the fair treatment of animals. Dog registration has been pooh-poohed—if I may coin a pun—by those in another place as well as in this place. However, that would have been a vital plank of the 1991 Dangerous Dogs Act if it had been implemented at that time. With such registration being urged by the RSPCA, the Canine Crisis Council and the Pet Advisory Committee, and with the Government boasting of their willingness to listen and to act on advice, let us see dog registration in the Queen's Speech.

Lord Lucas

I shall deal first with the questions of the noble Lord, Lord Clifford of Chudleigh. He will be aware that we are extremely sceptical on the subject of dog registration. That is likely to remain the case.

I am concerned about what the noble Lord said about practice in primary schools. I am not aware of anything of the kind happening. I will ask my colleagues and I will write to the noble Lord if I find any evidence of that.

So far as concerns picking up faeces in a plastic bag, if the noble Lord will provide an acceptable substitute—say a pile of crumpled up £10 notes—I shall demonstrate how it is done without it touching your hand.

In response to the noble and learned Lord, Lord Simon, I am afraid that I cannot give the comfort that he asks. We are committed to consulting widely on how the power might be used.

Lord Simon of Glaisdale

Surely the department must have some idea of how it proposes to use the power. It cannot be asking for a wide power just for the hell of it in the hope that it will come in useful at some later stage.

Lord Lucas

No. The Government's objective is to create regulations which will solve any problems that there might be in practice as regards working dogs. That would cover sheepdogs, which the noble and learned Lord mentioned. It would also cover hunting dogs.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [Designation orders]:

5.15 p.m.

Lord Palmer moved Amendment No. 6:

Page 2, line 40, leave out ("may") and insert ("shall").

The noble Lord said: In moving Amendment No. 6 in the name of my noble friend Lord Allenby I shall speak at the same time to Amendment No. 7 in my name.

While welcoming the broad principle of this Bill, I am sure your Lordships will agree—and many have mentioned tonight the speed with which this Bill is going through—that we must be very wary of being pressured into reneging our responsibility as the revising Chamber simply because the legislative timetable is tight, however many pressure groups clamour for our inaction. This is especially the case with Bills which involve animals (a similar situation will no doubt arise tomorrow with the Wild Mammals (Protection) Bill) when arguments are often emotive and passions run high. Surely the time available for the consideration of a Bill should have no effect on whether we scrutinise it properly. We should not pass Bills which we consider flawed simply because a flawed Bill is worth, to some, more than no Bill at all.

Although this Bill does not deal with dangerous dogs but rather nuisance dogs, we should be aware that the Dangerous Dogs Act passed through this House in a hurry and many people have suffered injustice as a result. I fear that this Bill, as it stands in its present form, also grants unacceptably draconian powers and will give rise to cases of injustice.

The purpose of the amendments is to place a firm duty on local authorities to consult with local people when designating land by description for the purposes of this Bill as well as ensuring that the Secretary of State shall, by regulations, prescribe the form of orders made under Clause 3(1).

At present Clause 3(2) gives local authorities wide new powers to designate land by description as well as by special reference. Under Clause 1, any land can be designated which is open to the air and to which the public are entitled or permitted to have access".

That is a substantial increase in remit, as opposed to the existing by-law regime, as well as making designation far easier. It is not only anomalous but potentially dangerous that these increased powers given to local authorities should be coupled with the removal of the statutory duty for these authorities to consult those who may be affected.

The honourable Member from another place who introduced this Private Member's Bill has himself said: there will be a need to advertise these proposals locally to enable representations to be made".

But he continued: However, experience with by-laws has shown that poop scoop proposals are very rarely controversial and do not normally attract objections".

That may well be the case in urban areas where there are extensive footpaths to be fouled and where residents vote with their feet. Scooping poops might prove more controversial within rural communities where pooping without scooping is not yet regarded as a heinous practice which might be stamped out. I dare to say that many people in these areas are not prepared to walk around with a pooper scooper to avoid being prosecuted.

Whether that is the case or not, local consultations will be vital and it is surely no argument to drop the duty to consult simply because consultations have not met with objections in the past. Powers have been increased here and consultations are all the more vital. They must be a duty.

Such an important defect in the Bill should not be left to the Secretary of State to correct. That is certainly the case with this Bill, as there is not even a statutory requirement that he should prescribe by regulations what procedures the local authority is to use in designating land. The first of the amendments addresses this issue directly: it makes such prescriptions by the Secretary of State a duty.

At Committee stage in the other place the Member for Sheffield, Hillsborough argued that this point was: running with the hare—because most of these areas are unlikely to be designated".—[Official Report, Commons, Standing Committee C, 14/6/95; col. 26.]

But, unlikely though it may seem, we could envisage cases where essentially urban-minded councillors could unleash essentially urban views of dog defecation on rural areas.

For farmers and country people generally, the concept of responsible dog ownership, as applied in the Bill, is simply not applicable. That was defined by the noble Earl, Lord Northesk, at Second Reading when he said: Responsible dog owning is about having control of one's pet at all times. By implication, if one is unaware of its actions one does not have adequate control of it".—[Official Report, 19/10/95; col. 848.]

Quite often, the owners of dogs who exercise them in rural areas lose sight of them, and this by definition would have been deemed to lose "adequate control" of their pet. The same goes for the exercising of more than one dog at a time.

It may be argued that the question of "shall" or "may" which the amendment addresses is a matter of semantics. The Pet Advisory Committee has suggested that it is already clear that the Secretary of State must lay out detailed regulations by which designation orders will be made and the means by which they will be publicised and consulted upon. However, there is nothing on the face of the Bill as it stands which makes it a duty for the Secretary of State to provide local authorities with procedural advice in making designations either specifically or by description. Neither is there any statutory duty on the Secretary of State to include within regulations provision requiring local authorities to publicise the making and effect of any proposed designation. Without that statutory duty there is no assurance that local consultations will take place, and these will be of vital importance.

These amendments would go some way in offering people the opportunity to voice such concerns should designation be planned. Although they are simple amendments they are necessary amendments given the sweeping new powers that the Bill gives authorities to designate far wider areas with far greater ease as "no poop without scoop" areas.

I have received support from all of your Lordships on this issue. I beg to move.

Lord Lucas

We have no position one way or the other on these two amendments. I can confirm that the Secretary of State intends to use the powers referred to in Amendment No. 6 to make regulations if the Bill is enacted. The Government consider it important to set out the form of designation order and procedure to give some consistency across the country.

On Amendment No. 7, I can confirm that if the Bill is enacted, the Secretary of State intends to include provision in the regulations for the local authority to publicise the making and effect of the orders referred to in the amendment. He intends that that shall be the case whether the land is to be designated specifically or by description.

The Earl of Northesk

As the noble Lord, Lord Palmer, correctly identified, the Bill, as drafted, does not include any requirement for the Secretary of State to make regulations prescribing the form of designation orders and the procedure to be followed by local authorities in the making of such orders. Nor is there any provision that the local authority must follow the form and procedures set out in any regulations. I accept therefore that if the Secretary of State did not use that power, local authorities could establish their own forms and procedures. That would be wholly undesirable not only because it would raise inconsistencies but also because many local authorities might feel that it creates uncertainty as to what is appropriate. Therefore, they might be reluctant to use the new powers. Clearly that is antipathetic to one of the Bill's primary purposes: to simplify and rationalise the existing by-law procedure.

The Minister explained, and it is my understanding, that the Secretary of State intends to make regulations should the Bill be enacted. Nevertheless, I can see upon reflection that it may well be better to amend the Bill to ensure that such regulations are made as a matter of course. Therefore I do not seek to oppose Amendment No. 6.

Equally, the noble Lord is quite right in his insistence that there should be publicity in the case of designations of land by description. I would go further. Local people should be forewarned that the local authority intended to produce any legislation which would require people to clear up after their dogs. As the Minister again explained, and as I am sure in my own mind, should the Bill be enacted, the Government would include requirement for publicity in the regulations. Unfortunately, as drafted the amendment seeks to ensure that the regulations cover this matter but only in as much as they relate to designations of land by description. I believe that the provision should apply to all categories of land that the local authority may seek to designate. Furthermore, I am uncertain whether the amended clause would be technically deficient because of the retention of the words "in particular" after the added words. Thus I regret that I cannot support the wording of Amendment No. 7 although I hope that the noble Lord will be comforted by my indication of approval for the principle of ensuring local publicity.

Lord Palmer

I am sure that many noble Lords are delighted that the noble Earl has been able to accept Amendment No. 6. I am most grateful to him, as I am sure are many Members of the Committee. I commend the amendment.

On Question, amendment agreed to.

[Amendment No. 7 not moved.]

Clause 3 agreed to.

Clauses 4 and 5 agreed to.

Clause 6 [Interpretation]:

[Amendment No. 8 not moved.]

Clause 6 agreed to.

Remaining clause agreed to.

House resumed: Bill reported with an amendment.