HL Deb 21 October 2003 vol 653 cc1506-69

3.26 p.m.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)

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

Moved, That the House do now resolve itself into Committee.—(Lord Whitty.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Hunting wild mammals with dogs]:

Baroness Mallalieu

moved Amendment No. 1: Page 1, line 4, after "he" insert "intentionally

The noble Baroness said: Perhaps I might explain briefly the purpose of this amendment and the others that will follow during the Committee stage in the names of the noble Lords, Lord Carlile of Berriew, Lord Donoughue, Lord Mancroft and others, to which I have added my name.

As the Committee will know, the Minister in another place who was charged with grasping the nettle that the issue of hunting has become for the Government promised to consult widely, to take evidence from all sides and to produce a hunting Bill that would be, based on principle and evidence".

The Prime Minister, too, gave that undertaking. On the basis that the issue would be dealt with fairly, the rural community co-operated to the full with the Minister.

The Minister used as a basis for his consultation exercise the report of the noble Lord, Lord Burns, which the then Home Secretary, the right honourable Jack Straw, had ordered "to inform the debate". On 12th March 2001, after publishing his report, the noble Lord, Lord Burns, said: Naturally, people ask whether we were implying that hunting is cruel… The short answer to that question is no. There was not sufficient verifiable evidence or data safely to reach views about cruelty".—[Official Report, 12/3/01; col. 533.]

Significantly, the Burns report also raised the possibility of licensing, which was beyond its terms of remit. The noble Lord, Lord Burns, said during the later hearings at Portcullis House, the bulk of the concerns the Burns Report raised about hunting might be addressed through licensing, a regulatory approach or by changing the rules of the hunts".

I know that each of the concerns that the noble Lord raised was dealt with and has specifically been remedied, in so far as it was possible, by the hunts themselves.

In September 2002, the Minister chaired three days of hearings in Portcullis House, with representatives from the Countryside Alliance, of which I am president, the then named Deadline 2000 and the Middle Way Group. Each of them questioned expert independent witnesses who gave evidence. I sat through every minute of those three days. At no point during the six-month consultation process, the evidence of which was helpfully placed by the Minister on the website, or during those hearings, was any evidence presented to justify an outright ban on any form of hunting.

There were, however, three major points of consensus among the experts on all sides during those hearings. The first was that the populations of quarry species would continue to be controlled whether or not hunting was banned. Secondly, the animal welfare experts on all sides agreed with the findings of the Burns report that suffering would occur from alternative control methods and that those often unaccountable methods would necessarily increase in the event of a ban. Thirdly, it was agreed that all species should be given parity of treatment.

In the Queen's Speech last November, the Government promised that, A Bill will be introduced to enable Parliament"—

I stress that the word was "Parliament"— to reach a conclusion",

on this issue.—[Official Report, 13/11/03; col.3]

The Bill originally presented by the Govt, as your Lordships will know, established a regulatory regime—a registrar who would deal with licensing applications and grant them according to specific criteria. It created three categories of hunting, despite the consensus that had been indicated at Portcullis House: the first related to hunting to be banned outright—that is, deer hunting and coursing. I stress that that was despite evidence to the contrary. Secondly, there was to be exempt hunting, which included ratting, rabbiting and flushing-out for shooting; thirdly, came all other forms of hunting— which had to be registered. In order to be registered, hunting had to pass two tests: first, of utility and, secondly, of least suffering. In some important respects, the Bill did not match the evidence and in some respects the tests that were to be applied were drawn in such a way as to exclude a fair consideration of the application by the registrar.

However, that said, those defects could have been remedied by careful examination and amendment of the Bill as it passed through Parliament. The essential structure provided by that Bill—a regulatory system for hunting and a framework against which the registrar could consider applications—was, I believe, sensible and with relatively few amendments could have been made into one which was workable, which would have been seen to be fair on all reasonable sides and would, I believe, have had the respect and support of the rural communities to which it would apply.

The public as a whole could have had confidence that hunting was being properly conducted according to recognised and approved codes of practice and that any breach would result in deregulation and the loss of the ability to hunt in future. Moreover, because registrations were required to be renewed, the registrar would have been able to keep under review changing circumstances in different areas and developments in alternative methods in research and in scientific progress.

As the Committee knows, that Bill was seriously undermined in its Standing Committee stages in another place and in July this year, in Mr Michael's own words, it was "wrecked" at Report stage when the provision was turned into a total ban. All references to the hunting register and the tribunal system in that original Bill were stripped from the Bill in a subsequent Standing Committee hearing, and the Bill that we now have received a Third Reading in another place, supported by fewer than half the 659 Members of Parliament.

The purpose of my amendments is to restore to the Bill a fair and workable registration system as envisaged by the Government and, indeed, as promised by them. Many of the amendments—indeed, most of them—will restore word for word those of the original Bill. In some respects, there are changes—and where there are changes, they will be clearly identified so that your Lordships can understand what they are and why they are suggested.

The role of this House must surely be both to seek to improve a Bill and, in this case, to try to ensure that the Government's promise of a fair Bill that is based on the evidence can be kept.

Amendment No. 1 seeks to insert the word "intentionally" into the first line of the Bill, so that it would read, A person commits an offence if he intentionally hunts a wild mammal with a dog". That is a short but important addition to the original Bill. I believe that it is necessary and that the Committee should accept it. Perhaps I may briefly explain why.

Rather extraordinarily, there is no satisfactory definition of "hunting" in the Bill that has been sent to us. The interpretation provisions in Part 3, Clause 11(2) state: For the purposes of this Act a reference to a person hunting a wild mammal with a dog includes, in particular, any case where—

  1. (a) a person engages or participates in the pursuit of a wild mammal, and
  2. (b) one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction)".
The definition is not exhaustive; it lacks clarity and there is no indication whatsoever either there or elsewhere in the Bill of what participation may be required to render the accused guilty of what is to become a criminal offence. The amendment provides a clear requirement for the prosecution before conviction to prove specific intent on the part of the person who is accused.

My concerns about the inadequacy of the definition were shared even by supporters of a ban on the Standing Committee in another place. During a debate on this topic, Mr Rob Marris, a lawyer who worked closely with the Minister, urged him to consider the interpretation of that clause very carefully, saying: I do not think that hunting is sufficiently well defined at present". No change was made; and I echo the words of my friend Mr Marris.

Without a requirement that there be a specific intention on the part of the accused, this Bill will create a nightmare for the police and the courts and a field-day for the lawyers. It would presumably be necessary for the courts to develop a definition which relied upon degrees of risk and foresight which, in the context of the activity of hunting, would be extremely difficult. Would someone, for example, who released their dog in a public park, knowing that there were foxes in the vicinity—most of us know that there are foxes in every park in this city—and knowing that that dog had a propensity to give chase, fall foul of this legislation? On the face of it, it seems that he would. At present, there is no requirement on the part of the prosecution to prove a specific intent to hunt, let alone to cause any suffering or to kill.

So, if, for example, an individual acting and believing he was acting in the best interests of an animal by seeking to relieve unnecessary suffering acted in the following way, he might well be considered criminal. Let us take as an example a motorist who hits a fox or a deer and then uses the dog in his car to try to find the injured animal speedily in adjacent woodland or undergrowth. He would appear to be committing an offence under this Bill unless he actually owned the land or first went and found out who was the owner and got his permission; or went first to the police and got their authority. So much for relieving animal suffering as quickly as possible.

Legislation which creates a new criminal offence, as this legislation does, must surely make it clear to everyone when, how and by whom an offence is committed. What is totally unclear from the Bill sent to us by the House of Commons is who essentially is to be criminalised. On a standard day's hunting with a pack of hounds, they are under the control of one person—the huntsman—with possibly one or two assistants acting as whippers-in. The mounted field is there, following and watching the hounds. In addition to the mounted field, there will in many cases be a very large number of people following in cars, on motorbikes, bicycles, on foot or on quadbikes.

On 4th February 2003, during the Committee stage in another place, Mr Michael said: Hunt followers who merely observe the progress of the hunters or follow at some distance without themselves engaging in the pursuit of a wild mammal being hunted are not hunting and are not covered by the offence". That presumably means that followers, whether they are on horses, in cars, on foot or on all those types of bike, who merely watch and follow, will not face prosecution. I should like to hear the Minister confirm that that is so. I have a particular interest in that last Saturday, when I would have said that I went out hunting, despite my best efforts I was not within a quarter of a mile of any hounds doing any hunting for the whole of the day after the meet. Would I have been a criminal?

The Bill contains no definition of participation in hunting, following a hunt or even being a spectator at a hunt. However, the Bill as it stands makes certain circumstances an offence, which cannot possibly have been intended. Some people may take part in a drag hunt so beloved of supporters of a ban. The hounds set out a drag line but then, without any intention on the part of those in control, "go live" when hounds start to follow the scent of a wild mammal. That is not something that is unheard of: it happens frequently. As the Bill is currently drafted, such people would appear to be committing a criminal offence.

Is an offence committed when hounds go out and no fox, deer or hare is found? A blank day is not uncommon. It might be said that the huntsman was attempting to hunt, but that raises questions that are more suited to the Bar finals examination about whether any offence is committed by attempting to do the impossible, even though no mammal will ever have been found let alone chased or killed.

Is it an offence when, as happens so often, hounds follow the scent in the wrong direction, not chasing the wild animal but in fact running away from it? I hope that some of those questions will be answered by the amendment tabled by the noble Lord, Lord Livsey of Talgarth, that is grouped with this one. I have opted for simplicity. Amendment No. 1 simply inserts the single word "intentionally" and I hope that the Minister will feel that he can accept it. I am encouraged to hope that he will do so in the light of what Mr Alun Michael said in Committee in another place on 4th February 2003. He said: The intentions or actions of the hunter determine what is going on. Hunting has an ordinary English meaning … Without that intent, a person is not hunting and is not covered by the offence in clause 1".—[Official Report, Commons, Standing Committee F, 4/02/03; col.735.] If that is still the Government's view, let us make it plain in the Bill. I beg to move.

Lord Livsey of Talgarth

I wish to propose Amendment No. 2, but will first comment briefly on Amendment No. 1. The expertise of the noble Baroness, Lady Mallalieu, became very evident in her speech and I have no wish to repeat what she said, but merely to add to her final statement. The Minister, Mr Alun Michael, when discussing the word intention, which is the nature of Amendment No. 1, said that the intention was to pursue a wild mammal. That was his description originally on 4th February. The definitions were spelled out by the Minister on that occasion during the Committee stage of the Hunting Bill. However, such definitions do not appear in the Bill as presently constituted. In other words, there are no definitions of intention in the Bill. That is a very serious matter indeed.

We should surely ask, "Why not?" when we question how this state of affairs has arisen. Surely the Bill should spell out the intention and the different functions that are taking place. It is not specific in relation to accountability, to which the noble Baroness referred. As the Bill stands, an offence would be committed if a drag hunt sets off on the drag line but the hounds start to follow the scent of a wild mammal—even if the mammal is not present in the area. Surely it should be exempt because the hounds are not intentionally hunting a wild mammal.

Without this amendment, the courts would have to develop a definition that relied upon degrees of risk and foresight in the context of the activity of hunting. Inevitably, such definitions in court would be subjective and not objective because the definitions are not spelled out in the legislation. These are serious matters because criminality would be defined by the court without such a definition coming forward.

Amendment No. 2 tries to define what occurs during a hunt. In line 4, it would leave out from the word "he" to the end of the line and insert, expressly encourages a dog to hunt a wild mammal that can be shown to be present, unless his hunting is registered or exempt". That means that an offence would be committed only if the dog or dogs were not registered to hunt or were not exempt and were being encouraged to hunt without those specific conditions.

I will address two major points: the nature of hunting and the processes that occur in hunting, which are very important. The amendment addresses the lack of definitions for what is undoubtedly a complex activity. For example, in exempt hunting specified in Schedule 1, there is reference to flushing a wild mammal out of cover. That is common parlance in shooting and is something that also occurs in hunting. There is no actual description of "cover". Is it woodland or just long grass? Sometimes a fox will run out into the open from an area of scrub and then back again and so on. When does a flush become a hunt? The lack of proper definitions in the Protection of Wild Mammals (Scotland) Act 2002 has contributed to the complete shambles north of the Border regarding hunting with dogs. The Scottish Parliament has not banned hunting. It has simply changed the way in which the practice is undertaken. Foxes are still chased, but are now shot as well and in greater numbers. One wonders where the animal welfare benefit lies in that ill thought-out legislation.

Definitions were included in the Anti-hunting Bill introduced in the House of Commons by Michael Foster MP in 1997, but were poorly drafted and found so difficult to improve that they were subsequently dropped. However, if good legislation—and I mean good legislation—is to reach the statute book, that law must be clear to everyone. It is the dog that hunts, not the human. Dogs will naturally hunt whether a human is present or not. If a dog owner or keeper knows that dogs have a propensity to hunt yet does not wish to do so, what happens if the dog is released from its lead? Clearly, such an action on the part of the owner is intentional. The amendment makes it clear that the prosecution would have to show that the owner "expressly encouraged" the dog to hunt.

The offence in Clause 1 is to hunt a wild mammal with a dog, but what if a wild mammal is not present? For example, one cannot be accused of stealing a car if that car does not exist. Of course, there will be the accusation of intent, but that raises further difficulties. Indeed, I mentioned the example of a drag hunt earlier. A hunt is made up of several sections. The first is when the dogs cast around for a scent. The second is when the dogs have found the scent and follow it. At this point the quarry species probably does not know that it is being hunted. The third part is when the quarry is viewed by the dogs and a sighted chase takes place. The final part is either the quarry escaping or being caught and killed. The question must be, if the intention of those hunting is not clear, at what point will an offence take place? Only when a quarry is sighted? If so, there will be lots of police officers spending a long time following hunts.

Sometimes, however, as the noble Baroness, Lady Mallalieu, said, the dogs will find a scent line but go the wrong way. When that happens the line is called the "heel" line, whereas the direction in which the animal is going is known as the "toe" line. So it is possible that those hunting with dogs are going in exactly the opposite direction.

I should like to make a number of other short points. In the Second Reading debate in your Lordships' House on 16th September 2003, the noble Lord, Lord Whitty, said: Cruelty is justifiable only if the alternative is worse cruelty or there is no alternative in achieving the utilitarian objective".— [Official Report, 16/9/03; col. 892.] Scientific evidence now exists to show that shooting, the main alternative to hunting, may in certain circumstances result in much higher wounding rates than previously claimed. There is no scientific study other than the flawed study of foxes taken to wildlife hospitals to counter that new evidence. It is the case, therefore, that a simple ban on hunting with dogs will actually make animal welfare worse. It is important to note that evidence.

Comparisons of hunting with dogs and the so-called baiting sports are totally wrong. I am sure that some of those issues will be raised later in the debate. Such comparisons are wrong for two reasons. First, the animal being baited is held captive by one means or another. Secondly, and perhaps more importantly, no alternatives to baiting were proposed. The hunting debate has been flawed from the very start in that it has concentrated solely on just one method of control while ignoring the other methods regardless of how much suffering they cause. The Bill sponsored by the noble Lord, Lord Donoughue, to amend the Wild Mammals (Protection) Act 1996 is the right way in which to approach the issue. That legislation will give all wild mammals protection from undue suffering in any activity.

I hope that I have clearly spelt out the importance of Amendment No. 2.

Lord Graham of Edmonton

I will certainly oppose Amendment No. 1, not least because it is the opening shot which we shall hear reverberate round this Chamber both today and in future debates. It attempts not to revise this legislation but to disembowel a Bill which has come to us from another place. Great play has been made of the function of this House, which I respect. Our function is to examine, to alter and to ask the other House to think again. However, devoid of the rhetoric behind the decision in the other place, the plain fact is that Clause 1 states: A person commits an offence if he hunts a wild mammal with a dog, unless his hunting is exempt". I have waited all my life to see legislation with those words in it. I understand the feeling of Members on all sides of the Committee who do not wish to accept that provision, but it has come to us from the other place.

When I look through the range of amendments, which have been put together strategically and cohesively, it is clear that Amendment No. 1 is intended to lead the onslaught on the integrity of legislation sent to us from the Commons. I realise that that may be to the liking of a great many noble Lords. Because of the arithmetic, I cannot believe that the proposed amendments will not succeed in this Chamber. However, if we send the Bill back to the other place with the proposed amendments, we know the situation in which we will be placed. This argument is not about the issues; it is an argument between the Houses.

I shall not speak very often or for very long in these debates. Those who are perturbed about the time taken up on the Bill may be assured that I will be their ally on this amendment and on others. As a former Member of the Commons, however, it sticks in my craw that the decisions of the other place are being treated so casually by those who want hunting to continue. The issue has not changed. Are you in favour of training one animal, a dog, to hunt another animal, not for food, but for pleasure or leisure or sport or whatever you like to call it? I am against it. Amendment No. 1 is the beginning of the wedge. I oppose this amendment and perhaps every other one that hangs with it.

Lord Crickhowell

I had thought that this was the one amendment on which those in favour of a ban on hunting could join in support with those against a ban on hunting. If the noble Lord who has just spoken had made that speech on the next set of amendments I could have understood what he was about. Here, however, we are simply dealing with the question of the definition of what constitutes hunting. I should have thought that anyone who drafts legislation would want to ensure that they do not have to rely simply on statements made by Ministers during a Committee stage for such a definition. I should like to give two very simple examples of the problems that are likely to arise.

I very regularly exercise my younger daughter's dog, a charming, delightful whippet. Confronted with sheep, it behaves impeccably. Confronted with any farm animal, it does not consider chasing it. Unfortunately, however, it is not a lawyer. As the noble Lord, Lord Livsey, pointed out, it is dogs that hunt, not humans. The fact is that Sterling—for that is the dog's name—behaving impeccably when it meets a sheep on the Black Mountains, but shortly afterwards sensing that there may be a squirrel, possibly a rabbit or better still a hare in the bracken, becomes almost uncontrollable.

I know that Sterling is inclined to chase those animals. He usually makes a bit of a fool of himself, but off he goes. I suppose it could be argued, as the Bill is drafted, that if I do not keep him on a lead the whole time, I am hunting, because I know that he is likely to go off after the animal. The fact that I walk beside him saying, "Now, Sterling, don't you think about it; behave yourself, would not, I suspect, be a very convincing defence if I happened to be spotted chasing the animal which was in full pursuit of a hare, although it is very difficult in deep bracken to know what it is pursuing.

So I suspect that, without a definition, the ordinary dog owner out exercising their dog in the park—as the noble Baroness, Lady Mallalieu, suggested, although I am on wilder country—may find themselves committing a criminal offence. I do not think that that is a possibility that we should consider.

Let us consider the case of flushing out, which has been mentioned. Any of us who have been shooting knows that dogs are put into the wood to put up pheasants, as I understand it, or whatever other birds one is seeking to flush. However, as I understand it, if those dogs chasing through the wood, encouraged by the beaters, suddenly come across a rabbit, fox or any other mammal, as they very likely will, they are then committing a criminal offence. That seems absolute madness. There was no intention that they should be chasing the fox or the rabbits, and indeed the beaters will do their best to get them back to the job of flushing out as quickly as they may. However, unless we have this matter properly defined in the Bill we are going to have a huge doubt about the legal position.

I do not think that we should allow legislation to pass from this House with that kind of doubt hanging over it. I do not think that we should put ourselves in a position of perhaps creating criminals of people who had absolutely no intention of hunting but cannot mount an effective defence. Even the noble Lord who has just spoken may occasionally take a dog for a walk. It is possible that that dog will chase a mammal. I do not want to see him prosecuted either for committing the offence that he hates so much. I hope that we shall support both these admirable amendments.

4 p.m.

Lord Phillips of Sudbury

I have the greatest respect for the noble Lord, Lord Graham of Edmonton, and can never hope to achieve the parliamentary distinction and service that he has rendered over a long political life. However, I must take issue with him when he twice referred—I think it is fair to say—to this Bill, rather than to these amendments, as an onslaught on the integrity of the Bill.

If there has been an onslaught on the integrity of the Bill, it occurred in the House of Commons when the original Bill succumbed to an onslaught of prejudice by Back-Benchers. I use the word "prejudice" advisedly. I suggest that the one single issue which might make those of us who are against abolition take the contrary view would be if there was solid evidence that hunting of foxes by hounds was a cruel pursuit. But the evidence—as collected by the noble Lord, Lord Burns, as produced before the hearings at Portcullis House, as submitted by a variety of vets and other people who know what they are talking about, which the noble Baroness, Lady Mallalieu, referred to succinctly—is plain to the contrary. The only method known to mankind of hunting a fox so as to leave it at the end of the hunt 100 per cent alive or 100 per cent dead is hunting by hounds.

Every alternative suffers from a double defect; that is, first, the competence of the shooter or the layer of a trap or poison. Secondly, where there is not an outright death by shooting, trapping or poisoning, there is the prospect of long, agonising suffering. Therefore, I put it to the noble Lord, Lord Graham, that he should not continue with a line that, I believe, in all objective truth, has been exploded. In exploding the case of cruelty, the case for abolition has been exploded. I strongly support the amendments that we are now discussing and I strongly support the amendments that follow, which seek to return the Bill to the kind of state in which it was introduced to the House of Commons.

Lord Mayhew of Twysden

Will the Minister focus closely on the effect of the amendment tabled by the noble Baroness, Lady Mallalieu, which is simply to require that this crime shall not be committed unless it be shown to be committed intentionally? It is quite a sensible legal maxim to hold that there should be no crime without a guilty mind. We have heard passionately explained the reasons why the other place should prevail in its view if there is a conflict with this House. That is because it is elected; its Members are elected.

Will the Minister reflect on this? If he does not provide a clear definition of a crime—as proposed in the noble Baroness's amendment—he is leaving the definition of the crime to the judges. The judges are not elected—not yet, at any rate. Is that what he wishes to achieve, rather than to accept a simple amendment which brings the legislation—whatever its merits or its ultimate effect—into line with the most fundamental maxim of criminal law?

There is just one other matter. The Government have made a big point about being tough on crime and tough on the causes of crime. It is just a little difficult to claim to be tough on the causes of crime, if one declines to define what is a crime.

Lord Eden of Winton

I support the amendment moved by the noble Baroness, Lady Mallalieu. In doing so, I should be grateful if the Minister would help me by clarifying the position about what would constitute a criminal offence in these circumstances. My noble friend Lord Crickhowell gave a personal illustration of taking a dog for a walk. I had a similar experience, albeit more than a decade ago.

I remember the experience clearly because I was walking with two dogs along a riverbank. Running parallel with the riverbank was a railway raised on a bank. It so happened that both the bank of the railway and the bank of the river provided the perfect habitat for rabbits. As I said, it was many years ago. Many of the rabbits encountered on that walk were suffering from myxomatosis and were hardly able to move. I shall not describe the nature of my dog because it did not have to be a very athletic beast in those circumstances. Several of the rabbits were caught and we dealt with them appropriately because they were blinded and in the most appalling condition from myxomatosis.

I do not know whether that would fall under utility or under another provision in the Bill. Without the addition of the word proposed by the noble Baroness, Lady Mallalieu, it would seem that if my wife and I, who were in control of the dogs, allowed a similar situation to occur today, or when the Bill becomes law, we would be guilty of a crime. That is unrealistic. It is something that goes against any concept of common sense, which is worrying a great number of people.

Many people who are not hunting—I do not hunt— and just go out in the normal course of exercising their dogs and so forth, would experience something like that. I am sure that that happens every day. Anyone who goes into the country must experience similar occurrences to that. Perhaps people in towns do not; although they might in public parks, particularly where there is a surfeit of grey squirrels and now a surfeit of foxes. But in the country it happens regularly. Are those people to be considered criminals? Are the police to be required to pursue them? Are neighbours to be encouraged to spy on them and to report on them? What kind of society is the noble Lord trying to create?

Lord Hooson

While listening to the debate, I was thinking that I have already twice declared an interest in this matter; first, my agricultural activities and, secondly, for many years I represented a county where there was widespread hunting of foxes because they were so much the predators of sheep. Now I have a third interest to declare. I finance my activities as a farmer and as a politician by another profession where I benefited enormously from being able to argue, from time to time, that the meaning set out in an Act of Parliament was entirely obscure and that a different meaning could be given to it. It was therefore very important that the benefit of the doubt should be given to those clients for whom I was appearing at the time.

That is why it is so important to have clarity in this Act. My old friend, the noble Lord, Lord Graham of Edmonton, will appreciate that point. In this country, no one should be convicted of an offence—least of all a fairly obscure one like this—unless it is absolutely proven that he or she had the intention of crossing that Act of Parliament. What is proposed in the first amendment, which is a crucial amendment and totally necessary in this Bill, clears up the obvious ambiguity; that is, what constitutes hunting?

Let us take the example of a drag hunt, which is to become one of the approved pursuits. The dogs follow the drag scent, but a different scent may intervene, perhaps from a hare or a fox. The dogs will follow that scent. Is a criminal offence being committed under those circumstances? Should the people who initially laid out the drag scent be prosecuted?

The Minister for Rural Affairs in the other place is, in my experience, a sensible, reasonable and balanced man. During the Committee stage in the Commons he stated that: The intentions and actions of the hunter determine what is going on".—[Official Report, Commons Standing Committee F, 4/2/03; col. 735.] That is what he intended, but the Bill which has come to this House does not spell that out. Thus the purpose of the amendment is to spell out the intention so clearly stated by the Minister for Rural Affairs but not made clear in the Bill now before noble Lords. The Minister went on to say that: The actions and intentions of the hunter determine what is going on. Without the intent, a person is not hunting and is not covered by the offence in Clause 1". But the Bill does not make that clear. All that this first amendment seeks to do is spell it out.

I am amazed that my old friend the noble Lord, Lord Graham of Edmonton, does not appreciate this point. Surely it is not the purpose of this House, as a revising Chamber, to give a blank cheque to an obscure Act and not seek to make it clear. On reflection, I think that my noble friend would agree that the first amendment should be accepted. I would be surprised, knowing him of old, if he did not accept that. Similarly, I support entirely the second amendment in the group.

Lord Elton

On the narrow point of intention, I rise merely to remind the Minister and the noble Baroness, Lady Mallalieu, that at this time of year, although increasingly throughout the year, parks—including London parks—where dogs are allowed off the lead are alive with grey squirrels. If you let a dog off the lead in a London park, you know that it is likely to see and to pursue a grey squirrel. You know also that the squirrel will make it to the safety of a tree first, while the dog has fun chasing it. The squirrel may lose a nut, but no one is the worse for it. However, under the terms of the Bill, you are knowingly allowing the dog to pursue a wild mammal; it need not be a fox.

On other matters I am very much at one with the noble Lord, Lord Phillips of Sudbury. In its present form I think that the Bill is wrong-headed and it is the function of this Chamber to ask the other place to think again when it gets something manifestly wrong, in particular when it is doing so in the face of a growing chorus of disapproval from the majority of the inhabitants of these islands.

Lord Peyton of Yeovil

I should like very much to extend a word of sympathy to the noble Lord sitting on the Front Bench opposite, the Minister responsible for this Bill. I developed this rather surprising wave of sympathy for him during the Second Reading debate, when the noble Lord seemed to be armoured only by his deftness. Perhaps we can derive a strange kind of satisfaction from the fact that he was doing the will of the "second Tony", as one might call him, Mr Banks, who regards this issue as having been totemised.

It is rather a pity that, when the noble Lord came to reply to that debate, he did not mention any word of the speech of his noble friend Lady Mallalieu. Let me quote one sentence from her remarks: True democracy ensures fair and proper treatment of minorities and avoids misuse of a dominant position. Its hallmarks are fairness, tolerance and broad-mindedness, which are impossible to find in this vindictive little Bill".—[Official Report, 16/9/03; col. 783.] I hope that, on this occasion, the noble Lord will find it possible at least to say that he has listened to his noble friend. While I could not possibly ask him to say that he agrees with her, I am sure that he would not be so obtuse as to say he disagrees.

I wish to make one other brief and simple point on the question of enforceability, a matter already touched on by my noble and learned friend Lord Mayhew and my noble friend Lord Eden, both of whom have asked how the police can be expected to enforce a law which makes criminal an action which has not been clearly defined.

Perhaps I may remind the noble Lord of one sentence he used in his Second Reading speech on the question of unenforceability: The threat of disruption and unenforceability is not one to which the Government or Parliament can or should succumb".— [Official Report, 16/9/03; col. 771.] I hope that that threat does not feature large in our debates. I want to ask the Minister as clearly as I can— and I hope that he will try to answer my question— whether he is really suggesting that enforceability is a matter of no importance for legislators to consider.

4.15 p.m.

Lord Donoughue

I support this amendment, to which my name is attached. I say to my good and noble friend Lord Graham that I share the puzzlement expressed by the rest of the Chamber. It seems to me that this first amendment would strengthen the banning Bill, should we emerge with that legislation, because it gives it a clarity and credibility which it would otherwise lack for the reasons that have been explained.

I should like to ask my noble friend on the Front Bench why the question of intention is not addressed in this Bill. He will know better than most that previous legislation in this area has done so. The last major piece of legislation was the Wild Mammals (Protection) Act 1996, which no doubt my noble friend knows word for word. He will know that the opening section states that if someone is doing something "with intent", that constitutes the offence. My own Private Member's Bill seeks to amend that Act in order to curb cruelty to mammals. It states that it is an offence "deliberately" and "with intent" to cause undue suffering to animals.

The Government took over the banning Bill in an act of striking humiliation and capitulation, but since then it has been the Government's Bill and they have chosen to present it to noble Lords as it is. Perhaps my noble friend can explain to noble Lords why the crucial issue of intent is not met.

Lord Willoughby de Broke

I rise to support the amendment moved by the noble Baroness, Lady Mallalieu. As the noble Lord, Lord Donoughue, has just pointed out, I think that we would help the Government if we were to pass the amendment. I say that because in Committee in another place, the Minister responsible for the Bill, Mr Alun Michael, said that: The hunt is the intention to pursue a wild animal. Without that, a person is not hunting and is therefore not covered by the offence in Clause 1".—[Official Report, Commons Standing Committee F, 4/2/03; col. 736.] Later in that Committee, he said in response to a question put to him by another Member of the Committee that, it depends on whether they are hunting". If people are merely observing, then they are not hunting. The noble Baroness, Lady Mallalieu, made the point herself: how is one to separate those who are hunting from those who are simply observing, gossiping or talking to their neighbours and doing what many people do while out hunting? Is it only the huntsmen who are actually hunting, is it the master, the field master, or is it those members of the field within a certain distance of the hounds?

Unless the question of intent is satisfactorily resolved there will be endless difficulties in enforcing the provisions of the Bill. I do not see how anyone can reasonably oppose what is, after all, a very small but important amendment. I hope that the Committee will support it.

Viscount Ullswater

It is right that at the outset of the Committee stage we should debate the intention of the owner of the dog. We have heard arguments—for instance, the one raised by my noble friend Lord Eden—which demonstrate the need to protect the dog walker from inadvertently becoming liable to an offence. The intention of the dog may be quite different to the intention of the owner and the two should not be confused. The noble Lord, Lord Donoughue, indicated that the drafting of legislation for previous Acts attempted to recognise that fact.

The Bill seeks to draw a very fine line in regard to animal welfare. It is apparently all right to shoot, snare, ferret, fly a falcon or hunt with dogs the rabbit or the lowly rat, but not the four wild animals that are commonly the quarries, of packs of hounds. The welfare of the rabbit somehow is not a problem. My noble friend Lord Eden referred to the occasion when he was walking his dog and came across rabbits with myxomatosis. You can do what you like with rabbits. They are exempted; they do not seem to have a welfare problem.

The Bill is aimed at the hunter rather than at the hunted. How can animal welfare campaigners be so selective as to distinguish between the hare and the rabbit? Many people would not be able to tell the difference between the two species.

Lord Eden of Winton

Rabbits are not exempted in that sense. They are exempted only if they are on land that you own; or if you have permission from the owner of the land; or, if you do not know who owns it, you have taken the trouble to try to find out who owns it. If, in the illustration I gave, I had no idea whether it was public land or whatever on the side of a river, it would not be covered by the exemptions itemised in Schedule 1 to the Bill.

Viscount Ullswater

I accept my noble friend's strictures. I was referring to the welfare of the animal rather than the preconditions needed for hunting to take place.

We do not have a tradition of hunting rabbits with packs of hounds, but in France they do. There are 45 foot packs registered there which are experiencing a rapid growth in popularity, as the Burns report tells us. Where would the welfare considerations of the humble rabbit be in this country if packs of hounds were hunting it? Would it suddenly gain different rights to protect it from hunting with dogs? Once the intention becomes a collective sport it runs the risk of being banned. It is impossible to consider the Bill in terms of animal welfare when such glaring inconsistencies exist.

In any proper regulation of hunting legislation, an intention on behalf of the hunter needs to be demonstrated. I support this simple but important amendment.

Lord Mancroft

My noble friend Lord Ullswater may well have put his finger on the issue. This is not, as the noble Lord, Lord Graham, believes, an animal welfare Bill—it was never intended to be; it is a criminal Bill. That is the problem. Members of another place and casual observers, if such people exist, tend to think of it in terms of animals, but the Bill has nothing to do with animals at all; it is to do with people and their conduct. It is not a pro-fox or a pro-deer Bill; it is an anti-people Bill which creates a criminal offence.

During the Committee stage in another place, it became clear that the Minister had spent an awful lot of time looking at the issue of hunting and consulting experts, scientists, vets and so on. But what he did not do, I suspect, was to go out to see what happens in the countryside; to observe what lawyers might call the facts of the case; to see what happens when people go out with dogs in the countryside, either with the personal intention of hunting or of going for a walk with their dogs and not hunting. That is where the problem exists.

As with so many Bills, it is a problem of language. You might come up to me and say, "What are you doing on Saturday?" and I might say, "I am going hunting". But I promise you that I am not going to run across a field, barking, after the scent of an animal. I cannot do that. Hounds can do that, dogs can do that, but when I say, "I am going hunting", I get on a horse—I do not wear a red coat, but I could—and I follow a pack of hounds. I do what Mr Alun Michael said in Committee in another place. He stated: Hunt followers, who merely observe the progress of the hunters, or follow them at some distance without themselves engaging in the pursuit of the wild mammal being hunted, are not hunting and are not covered by the offence".—[Official Report, Commons Standing Committee F, 4/2/03; col. 735.] If in the process of galloping along on my horse I engaged in the pursuit of the wild mammal—or I got in the way—I would be in dead trouble.

In reality, I am an observer. When I say, "I am going hunting", I mean that in exactly the same way as others may say, "I am going to football". They are not going to kick a ball about but to sit in a stadium. The only difference between the person who goes to a football stadium, sits in a seat and watches the game being played, and the person who goes hunting on a horse—both are sitting down, thank God—is that, because the field of play moves rather further in hunting, hunters require a chair with legs. But we are not participants. Clearly from what he said in Committee, the Minister believes that we are. There is a complete misconception.

There is no real definition of hunting in the Bill. It is not as clear as the Minister in another place thinks it is; it is extremely unclear. This means that the provisions in the Bill will be incredibly difficult to enforce. As other noble Lords have said, one of the most obvious problems is that most hunting takes place out of sight and sound of the quarry. When dogs hunt, most of the time they are following an invisible line on the ground. Even the most expert huntsmen are occasionally fooled as to whether they are following a hare, a fox or a deer. Usually they get it right but, although they will not admit it in public, occasionally everyone gets it wrong and the hounds chase the wrong quarry.

Of course, you cannot see the quarry, but if they can be fooled, how will a police constable be able to give evidence in court about what was going on? He would not possibly know. Who will be the expert witness? There will be probably only one at the scene of the crime—the huntsman—and I very much doubt that he will be an expert witness against himself.

The Bill is unenforceable because hunting is not defined. I suspect that those who drew up the Bill did not know how to define it. The Bill needs a definition and it needs an intention. As we go through the Bill we will come across other matters that need definition, but the first and most obvious is that there must be an intention to commit the crime. You cannot mug someone by mistake. You cannot steal a car by mistake and say, "Honestly, officer, I did not mean it. It was an accident. I stole it but it wasn't on purpose".

But you can hunt by mistake. My wife does it every day. She takes out our three dogs and they go hunting. She says, "Stop" and they say, "No", and off they go. That is a reality of life. Technically, she probably commits an offence every day, and I suspect that there are masses of people up and down the country like her. It is essential that we are clear about this.

I have listened to debates in your Lordships' House when criminal justice Bills were being discussed. On many occasions there were arguments about definitions and the precision of language. This is such a debate. It is not about hunting but about accurate law. As it is drafted at the moment, the Bill is extremely inaccurate.

4.30 p.m.

Lord Skidelsky

I support the amendment for the very narrow but precise reason given by the noble Lord, Lord Donoughue, that it is independent of the wider purposes of the Bill. It is relevant and ought to be part of the Bill, however wide the net of exemption is cast. It is equally relevant for a Bill which bans hunting and a Bill in which certain pursuits are non-exempt. That is the answer to the noble Lord, Lord Graham of Edmonton. Therefore, it is simply a question of good, enforceable and commonsense law. That is the only really relevant point on this amendment.

Earl Peel

No matter what the outcome of the Bill, it is clearly essential that we deliver legislation that will be practicable and workable and which the police can live with, with some degree of confidence.

I am certain that many of your Lordships will have read in the newspapers recently that the police are deeply concerned about implementing certain aspects of the legislation, so it is essential that we attempt to inject as much clarity as we can into the Bill. For all the reasons that have been given so far, I believe it is essential that we do that. I wholeheartedly support both amendments, because either would achieve the purpose we want.

I have listened with great interest to what your Lordships have said so far. The more I listen to what is said, the more I realise just how ridiculous a situation we are in. My noble friend Lord Crickhowell gave us an account of walking through the woods with his whippet. He maintains, and I am sure he is right, that he would have no intention of hunting. But supposing my grandmother, if she were still alive— which she is not—was walking through the same woods with two chihuahuas. Can one honestly believe that it would be my grandmother's intention to allow those chihuahuas successfully to pursue a hare? Of course there would be no intention. Therefore, if we do not have a clear definition in the Bill, the police will have to be involved in matters which they frankly will not be able to deal with.

One other example that comes to mind is that of a farmer, on his quad bike, going out to gather his sheep. His sheepdog is behind him and it temporarily takes off after a hare. Will that farmer be committing an offence under this Bill? If so, we have reached fantasy world, and we really have to think again.

Lord Palmer

I, too, strongly support these amendments. The noble Lords, Lord Willoughby de Broke and Lord Mancroft, have summed everything up. It is not man that hunts, but hounds. That is a very important distinction and I therefore strongly support the amendments.

Viscount Astor

I thank the noble Baroness for introducing this important amendment. As the noble Lords, Lord Donoughue and Lord Skidelsky, said, whatever one's views about hunting, this amendment is probably required. It is crucial, as it deals with intent.

Like the noble Baroness, I sat through the three days of evidence-taking at Portcullis House, and I welcomed the Alun Michael Bill when it was first published. I welcomed it in principle, although I believed it needed amendments. I followed its rather tortuous process through another place, through its 27 Committee sittings. I noted, too—carefully—the Government's manifesto commitment to enable Parliament to reach a conclusion. I have always understood Parliament to include this House as well as another place.

The Alun Michael Bill was wrecked—those are not my words but his. This House is a revising Chamber and it has a duty, if it so wishes, to ask another place to think again and to revise. This amendment is central to any sensible Bill, in whatever state it leaves this House. In Committee in another place, the Minister, Alun Michael, was asked about intent. He said that if people are merely observing, they are not hunting.

I have read those Committee proceedings very carefully, and I find it very difficult to pinpoint any definition that the Minister made at any stage of the Bill's passage through another place of what constitutes observing and what constitutes hunting. If you are following in a car, are you observing? Surely you must be—you have no control over the hounds. If you are following on foot, what is that? If you are following on a motorbike or a bicycle, what are you doing? Is that any different from following on a horse? Surely such people are observing as well. Who is hunting and who is not hunting? If someone peers over a hedge and looks at the hunt, are they hunting? Have they joined in? What happens if, as the noble Baroness, Lady Mallalieu, said, it is a blank day? Is anybody hunting?

Let us consider drag hunting. As noble Lords have said, should the hounds cross the trail of a fox and suddenly find that is a superior scent to follow, they will not be committing an offence if they hunt backwards because they will not be following the fox, they will be following a scent in the wrong direction. However, if they hunt forwards, they will be committing an offence. This does not make any sense.

My noble and learned friend Lord Mayhew made an important point. Unless the amendment is considered carefully by the Government, it will be left to the courts and judges to define what is a crime. That point was of concern to my noble friends Lord Eden, Lord Crickhowell and Lord Peyton.

The amendment of the noble Lord, Lord Livsey of Talgarth, has a similar intention. I will be interested to hear the Minister's reply to both amendments. The noble Lord, Lord Livsey, again asked the crucial question: when will an offence take place? At what point? My noble friend Lord Elton raised the spectre of London and squirrels. It would be an extraordinary effect of the Bill if innocent dog-walkers were suddenly hauled up in their hundreds because their charges misbehaved in whichever London park they happened to be using.

This is a crucial issue of intent. As my noble friends Lord Ullswater and Lord Mancroft said, this is not an animal welfare Bill. It is about people, not animals. My noble friend Lord Peel summed it up well—we must have a Bill that is practicable and workable, and we must try and inject clarity into the process. I believe this amendment goes a long way—probably all the way—to doing that, and I hope that the Government will accept it or give us very good reasons why they cannot. As I said at the start of my remarks, whatever one's views about the outcome of the Bill, this amendment is probably necessary.

Lord Whitty

When I first saw this amendment, I thought this was a fairly straightforward issue. 1 thought the question of intent would be discussed and the only issue would be whether it was necessary to include it in the Bill. I will come on to that point in a moment. However, a number of somewhat wider issues have been touched on, starting with the speech of my noble friend Lady Mallalieu. I therefore, regrettably, feel constrained to make a few general points in my first intervention in this Committee stage. That will give an indication of the way in which I intend to operate during Committee.

Your Lordships will be aware of the position I put to the House at Second Reading. I referred to my personal position, which is not particularly relevant in this respect, and to the Government's view of the Bill we received from the Commons.

I remind the noble Viscount, Lord Astor, and my noble friend Lady Mallalieu, that I started by quoting from the Labour Party manifesto somewhat incompletely. Some of you will know that I am rather familiar with Labour Party manifestos, and it has been known that from time to time they contain weasel words, as, no doubt, do those of other parties. However, in this case, it is absolutely clear what it says in the manifesto. The 2001 manifesto refers back to the House of Commons elected in 1997, which made clear its wish to ban fox hunting. It said: The House of Lords took a different view (and reform has been blocked). Such issues are rightly a matter for a free vote and we will give the new House of Commons an early opportunity to express its view". That has now happened.

The Earl of Onslow

Did the Minister say that the manifesto said that the House of Lords blocked the Hunting Bill? If it did, the manifesto is telling a lie.

Lord Whitty

We are talking about the 1997 Parliament, at which point the House of Lords did not accept the same view as the House of Commons.

The Earl of Onslow

This is incredibly important—

Lord Whitty

I am simply quoting the manifesto, if the noble Earl would listen to me for a moment.

The Earl of Onslow

This is incredibly important. If people say that someone did something when he did not, and it has been shown beyond peradventure that he did not, that is not telling the truth. The House of Lords did not block the Hunting Bill, under any circumstances whatever. It had a slightly different view and time ran out. That is not blocking it, and the sooner that is recognised and the sooner that people do not say things that are not exactly coincidental with the facts, the better.

Lord Whitty

As I said, I am quoting the manifesto. What actually happened in the 1997 Parliament was that, as the noble Earl said, this House took a different view from the House of Commons. The manifesto had given the House of Commons a free vote on its views on fox hunting, as we have given the House of Commons in this Parliament a free vote on fox hunting. That House of Commons has made its view known; the view of the House of Commons was different from the original proposition that the Government put before the House of Commons, but it was carried overwhelmingly clearly, with support in that overwhelming majority from members of all parties in the House of Commons.

The reference to Parliament is thereafter. If the House of Lords now fails to agree with the House of Commons, clearly it will be a matter for the House of Commons where to take the legislation subsequently, and we will in that sense enable Parliament to reach a conclusion.

I do not want us to get ahead of ourselves, but what we are faced with at this point—

Lord Waddington

The Minister is not right even in that. It is not for the House of Commons to decide whether to reintroduce the Bill. It will be for the Government to decide whether they are going to introduce a Bill themselves or give time for a Bill introduced by a Back-Bencher. It is the Government's responsibility.

Lord Whitty

The noble Lord is completely wrong in that respect. Ultimately, the time in the House of Commons is a matter for the House of Commons itself, particularly in relation to legislation based on a free vote of the House of Commons. It is therefore not entirely in the hands of the Government. It is true that the Government can help that process along or not, but at the end of the day it is a matter for the House of Commons, which has already spoken, and spoken clearly, on what it believes the legislation should provide. That is the Bill before us.

The Government felt that a degree of compromise at an earlier stage might be possible with the original Bill that we put before the House of Commons. In fact, that was greeted with no great enthusiasm by those who wish to defend hunting. Several of those who have tabled amendments today opposed the basis of that legislation. The next groups of amendments that we will debate, which on the face of it purport to reinstate the original Bill, in fact dilute the original Bill very substantially. My noble friend Lady Mallalieu was clear that she felt that the original Bill would not be acceptable to this Chamber and was certainly not acceptable to her.

Therefore, the idea that we have an alternative before us today—the original Bill promoted by the Government as against the Bill presented by the House of Commons—is not actually the truth. Instead, we are faced with a Bill that has been passed by an overwhelming majority of the House of Commons, which is in line with the manifesto commitment and the Government's responsibility to facilitate that Bill passing into law.

Baroness Mallalieu

Is it no longer the Government's intention to continue to deliver a Bill based on evidence, which was the promise that was made both by my right honourable friend Mr Alun Michael and by the Prime Minister and was the basis of the original Bill?

4.45 p.m.

Lord Whitty

The evidence base of the original Bill was one set of evidence. The evidence that was taken into account by the majority in the House of Commons includes other views, and views that some Members of this House undoubtedly query. The fact is that the House of Commons has made a judgment. Although that judgment does not meet with the approval of large sections of this Chamber, it is a fact. If we ignore that fact in this debate we are avoiding discussing the content of the legislation and the potential constitutional impasse that we will be up against. Therefore, we should be dealing with the Bill that is now before us.

Lord Donoughue

I thank my noble friend for giving way. Because he was being interrupted, he may not have conveyed the total contents of the Labour Party manifesto. Will he allow me to tell the Committee what it says? It says that the Government, will give the new House of Commons an early opportunity to express its view". The Minister conveyed that accurately, but then he was interrupted and did not have a full opportunity to read out the following sentence, which says: We will then enable Parliament to reach a conclusion on this issue".

Noble Lords

He said that.

Lord Donoughue

I know that he meant that, but I do not believe that it came across as clearly as he would have wished.

Lord Whitty

As a number of my noble friends have said, I read that bit out as well. I said that we are not yet at that stage. Excuse me, I need my glasses—the Labour manifesto needs to be written in larger print. It says: If the issue continues to be blocked we will look at how the disagreement can be resolved". The manifesto says that, in that context, we will then enable Parliament to reach a conclusion on this issue". Parliament can reach a conclusion in a number of different ways, and it is open to the House of Lords to attempt to amend this Bill. I was pointing out to the Committee that, in line with the manifesto and the Government's responsibilities, noble Lords must consider the Bill that is before them. I, in terms of the Government's responsibilities, must make it clear that I—

Lord Stoddart of Swindon

I am most obliged to the Minister and sorry to interrupt him. Did I hear him correctly when he said that the Labour Party manifesto referred to fox hunting and that the Government would give the House of Commons the opportunity to vote? Are those the exact terms? Fox hunting?

Lord Whitty

Yes, they are, and if my noble friend takes the matter further he can no doubt say that hare coursing and stag hunting are therefore not covered by the manifesto commitment. Nevertheless, they are covered by the legislation introduced through the House of Commons.

Lord Stoddart of Swindon

I am sorry to interrupt the Minister again. This is a Bill to ban the hunting of wild mammals, not to ban fox hunting, so in actual fact the House of Commons has gone very much further than the Labour Party manifesto wanted it to go.

Lord Whitty

Yes—the House of Commons, on a free vote, has gone further than the manifesto commitment. However, the core of the Bill and most of the argument in the course of the discussion of the amendment, which does not of itself really provoke such a wide discussion, was focused very much on fox hunting. The fact that the Bill before us goes somewhat wider than that does not undermine the fact that the Government are broadly following the manifesto commitment. I have engaged in this rather lengthy preamble in order to—

Earl Ferrers

If the Government are following the manifesto commitment, were they not following the manifesto commitment with their original Bill?

Lord Whitty

Yes—the manifesto commitment is to allow the House of Commons a free vote on the issue. That is what we have done. The manifesto commitment is completely fulfilled and has resulted in the Bill that is before us.

I apologise to the Committee for making such a long preamble. However, it is a preamble to me saying that, because of that background—because of the decisions taken by the House of Commons, the attitude that the House has hitherto taken and the amendments that are before us, which are an attempt to substitute at later stages an alternative to the Bill—I am not going to recommend to the Committee that we accept any amendments to the Bill, whether this amendment or any other amendment. It is, of course, a free vote. I am not binding my colleagues on the Benches behind me and I am not attempting to determine that the noble Earl opposite will always oppose me.

The Earl of Onslow

In all my time in this House I do not think that I have ever heard a more arrogant disregard of people's views. It is completely disgraceful that a Government Minister should come to the Front Bench and say that he has no intention of paying any attention to any views put forward in your Lordships' House. That is an abuse of Parliament. I have not yet finished. It is second rate and it shows how low this Government have now fallen. I have been angry before but never so angry as when I hear that kind of arrogant remark.

Lord Kirkhill

Before my noble friend the Minister responds, as a long-standing Member of this House— just about as long-standing as the noble Earl—I say that the noble Earl's intervention just now was entirely disgraceful in its content, its attitude and its expression. I for one take the strongest possible objection to it.

Lord Whitty

I thank my noble friend for that intervention if only because it prevented me responding rather more strongly. I respectfully point out to the noble Earl that I did not say that I would not take any notice of what was said in your Lordships' House. I did not say that I would not recommend the House of Commons to take notice of what was said in your Lordships' House. I said that I would not recommend acceptance of any amendment which is before this House. That is entirely different. That does not seem to me arrogant. It is a matter for your Lordships' judgment whether that is second rate but it is certainly not arrogant.

Earl Ferrers

I realise that the noble Lord does not want to be arrogant and I am sure that he does not intend to be. But if he says that he is not prepared to listen to an argument to find out whether it has anything in it before saying whether or not it should be accepted, that is being slightly arrogant. Surely the whole purpose of putting down amendments is to hear the argument.

Lord Whitty

I did not say that I would not listen to argument. I said that in the rather unique circumstances in which we find ourselves when both Houses have a free vote, and when the Government, in line with their manifesto commitment, have brought to this House a Bill carried by a free vote of all parties in the House of Commons, it is not the Government's intention to indicate support for amendments to that Bill.

Lord Campbell-Savours

Is my noble friend prepared to tell us what he believes would be the effect of introducing the word "intentionally" into the legislation?

Lord Whitty

We should all be grateful to my noble friend for getting down to the actual content of the amendment. Perhaps we can calmly face up to that. Whether we address the original Bill presented to the House of Commons, the Bill that we have before us or the amendments before us today, it is clear that we are all talking about intentional hunting. The question is whether we need the word "intentionally" in the text of the Bill in order to convey that meaning. This, in essence, is a technical issue. I am advised that the ordinary English meaning of "to hunt" incorporates all the senses of searching for, pursuing, tracking and chasing. According to The Oxford English Dictionary, to hunt means to go in pursuit of wild animals or game; to engage in the chase; to pursue; to engage in; to chase—in other words, all words which convey intention: the intention of the hunter—the human— not the intention of the dog.

It is therefore clear from the normal definition of "hunting" that the dog which runs after a squirrel in the park; people who are not themselves engaged in the organisation of hunting but are simply observers; and people who deal with injured animals, as was the case with the rabbits mentioned by the noble Lord, Lord Eden—that is a clear exemption in the Bill under paragraph 8(2) of Schedule 1—or the motorist to which my noble friend Lady Mallalieu referred, would not be covered by intentional hunting. The latter two cases are clearly exempt under the Bill. The advice I have, which is technical advice, is that it is not necessary to insert the word "intentionally" in the Bill at this point.

Lord Stoddart of Swindon

I am most obliged to the Minister, but this debate so far has ranged round countryside pursuits. But, of course, the countryside is not the only part of our country which is involved. We now have urban foxes, squirrels and all sorts of animals coming into gardens. Would someone with a large garden who set his alsatian dog on a fox or squirrels on his property to drive them out be hunting? If he is not, how does the Minister explain the Bill and what he has just said? If he is, very many more people than think they will may be criminalised.

Lord Whitty

There are exemptions for pursuit of non-specified species on one's own property. If someone has organised a hunt with a pack of hounds, that is intent. However, if someone has let a dog loose in a park, whether urban or rural, that is not intent. That is implied in the word "hunt". The Committee may feel that for the avoidance of doubt we ought to introduce the word "intentionally" into Clause 1. The normal advice from parliamentary counsel and lawyers is that if it is not necessary, it is otiose to introduce it. I make that technical point. I give way.

Lord Lloyd of Berwick

I happen to be of the view that we need one or other of these two amendments, whether we are for or against hunting. I slightly prefer the second of the two amendments, partly for the reasons which the Minister gave on whether intention would be implied anyway. Can the Minister explain how I can achieve the result I want, which is to vote for the amendment of the noble Lord, Lord Livsey, rather than Amendment No. 1, because presumably if we pass the first amendment, the second will fall?

Lord Whitty

That is probably a matter for the House authorities rather than me. If the first amendment is pressed to a vote and is passed, no doubt we would be advised whether the second amendment would then fall. However, as I say, that is not a matter for me.

Lord Lloyd of Berwick

Best of all, of course, would be if we could combine the two amendments, but it may be too late to do that now. I suspect that would suit everyone—those who are for hunting and those who are against.

Lord Phillips of Sudbury

Before the Minister responds to the debate, I am a relatively new Member of this House compared with some who have spoken, and I do not know in what status the debate on this Bill is left if the Government are saying that, regardless of the merits of what is said on any amendment, they will not accept them. It seems to me a bit like a judge who says, "I will listen to you but I have made up my mind about your guilt". I am trying to make clear what is the purpose of the debate that is to follow if the Government have a closed mind on the amendments that will be put forward.

Lord Whitty

The purpose of the debate is for the Committee to decide what its view is on a free vote. All I said was that in the circumstances in which we find ourselves the Government are not suggesting support for any amendment which is on the Marshalled List today.

Lord King of Bridgwater

Before the Minister sits down, I listened very carefully to his final sentence. Is he saying that the Government will not support any amendment that is due for debate today—any amendment on the Marshalled List? I shall have to advise certain conservation groups as well as others who are not particularly involved in the debate for or against hunting but which think that the Bill could be improved. Am I to tell them that it is not worth tabling amendments?

Lord Whitty

Of course it is worth tabling amendments for debate in this House where the House will have a free vote. The House of Commons will then have to consider its view of any amendments which are carried by this House. The only point that I make today is that the Government do not advocate amendments to the Bill as it stands. On a clause-by-clause basis, that is a pretty usual position for the Government to take in this House when we are dealing with a Bill from the House of Commons.

The Earl of Onslow

It is not.

Lord Whitty

On a clause-by-clause basis, it is a very common position for the Government to say that we do not recommend acceptance of an amendment.

The Earl of Onslow

It is not.

Lord Whitty

Will the noble Earl please not interrupt from a sedentary position?

The Earl of Onslow

What the Minister says is not true.

Lord Whitty

The noble Earl is constantly accusing me of telling untruths. Will he please withdraw that comment?

The Earl of Onslow

Time after time, governments of all parties have said that they will take amendments away and look at them because they have listened to what people say on the Floor of this House. The noble Lord is saying, "I have come in with my mind like a steel trap. I do not have the faintest intention of listening to anything that anyone says".

5 p.m.

The Countess of Mar

I shall try to introduce a voice of moderation. When the Government disagree with an amendment moved by a noble Lord, wherever he stands in the House, do we not have the right to vote on it? He has the right to divide the House. If the House then agrees to that amendment, the Bill is altered.

Lord Whitty

Precisely. In this circumstance, we will have a free vote. The Government's position is normally to indicate to our supporters how to vote, whereas it is not my intention to recommend accepting any of the amendments, for the reasons that I have spelled out. We are in free-vote territory, although the noble Earl may not understand that. It is a somewhat unique position.

I should clarify a point made earlier on the procedure: Amendment No. 2 would be called even if Amendment No. 1 were agreed to.

Earl Peel

I accept that the noble Lord has closed his mind to the debate, but it is normal practice for a Minister at least to answer the questions put to him on an amendment. In this case, some of them are technical and need clarification. I hope that he might at the very least consider doing that, as it is the normal practice of this House.

Noble Lords

He has.

Earl Peel

I do not believe that he has for one moment.

I want to go back to the point raised by the noble Lord, Lord Stoddart, as it is very important. He asked a question about someone putting their dog on to a fox in, let us say, a garden. I think that I am right in saying that the Minister said that that would not be hunting. However, the Bill states: A person commits an offence if he hunts a wild mammal with a dog". As we have no definition of "hunting" I suggest that, as the Bill stands, that individual could find himself in some difficulty if a prosecution occurred. Will the Minister clarify that?

Viscount Astor

Before the Minister answers, I would be grateful if he would address who is hunting and who is not. I made the point about foot-followers and people in cars. What is their position? I would be grateful for his explanation, as he has not addressed the issues.

Lord Whitty

Whether or not we incorporate "intentionally", the intention of the clause is to deal with humans who intentionally hunt. Anyone who is involved and is part of the organisation of the hunt seems to me to qualify for "hunting". Anyone driving in a car or watching from a distance who is not part of that hunt in normal circumstances would not be deemed as hunting.

Lord Elton

The Minister—

Lord Whitty

I would like to answer the noble Earl, Lord Peel. I did not say that "hunting" did not include such circumstances in answer to my noble friend Lord Stoddart, but that there were a number of exemptions relating to hunting of animals on one's own land that relate to Schedule 1 on rats, rabbits and, in certain circumstances, hares. The precise position to which he referred is not covered by those exemptions, but many equivalent situations would be.

Lord Elton

The noble Lord's answer leaves quite a lot in doubt. Large numbers of followers on foot, in motor cars and on bicycles subscribe and belong to hunt supporters' clubs. Does that imply intention? Are they caught? Should that not be plain in the Bill? Perhaps the amendment would not make it plain, but a provision on that is surely needed. It needs to be proposed to the other place before we have finished with the Bill, so that it has the arguments before it in green and black.

Lord Whitty

The intention to hunt means engaging in the activity of hunting, not of driving a car down country lanes. There may be some grey areas that would have to be determined by the courts, but in general the definition is pretty clearly the intention to participate in a hunt.

I shall go back to the intervention of the noble Earl, Lord Peel. The principal amendment relates to "intentionally". To say that I have not replied to that point takes the biscuit. I have been replying to it for nearly 30 minutes. I continue to intend to reply to the debate. If it will help the Committee to have my interpretation on issues raised by the amendments, I will give that. All that I say is that I will not, at the end of that, recommend acceptance of any amendment before us today.

Lord Brittan of Spennithorne

With regard to the question raised by my noble friend Lord Peel, the Minister may have been a little rapid in his final answer. He conceded that the exemption that would mean that someone was not guilty if he hunted a rabbit on his own land did not apply to a fox. Is he not saying that my noble friend is absolutely right and that, in the circumstances that he described of setting a dog on a fox in one's own land, one would be guilty of the offence?

Lord Whitty

That is consistent with what I said in relation to foxes. However, some species are exempt under the Bill. The question asked by the noble Lord, Lord Stoddart, was actually in relation to squirrels, and that may also require some clarification.

Lord Waddington

I am sure that the noble Lord would want to be entirely frank with the Committee. Is not the position this: he is not prepared to accept any amendment, even one recommended as necessary by a noble and learned Lord, because if the Government did so and the Bill did not become law this Session, the consequences of the Government having accepted such an amendment here and in the other place would be that they could not use the Parliament Act if the Bill were rejected next Session? That is the truth of the matter.

Lord Whitty

No. I have argued that the Committee should not get ahead of itself. Let us find a way through the matter without necessarily pre-empting all the subsequent stages that the House of Commons—I repeat, the House of Commons—might take. Were I to take the noble Lord's advice and accept every amendment recommended by a noble and learned Lord, the Government would find themselves in serious trouble.

Lord Mackie of Benshie

The noble Lord is saying that he will not accept any amendment. Is he also saying that he will not reject any amendment?

Lord Whitty

In Committee, we have a free vote. It is not down to me to accept or reject. I wish to hear the debate. As it happens, I do not propose to vote either way in Committee. What I do at subsequent stages depends how the House decides on the various amendments now and in future. All that I say today is that there is no amendment in the Marshalled List that the Government are prepared to advise the Committee or any Member of the Committee to accept.

The Earl of Caithness

Will the Minister clarify a point that he made earlier? He seemed to say that the dog of the daughter of my noble friend Lord Crickhowell would not be hunting if it went off when taken for a walk. Then he said that the provision would prevent hunting by packs. I cannot find a definition of "pack" in the Bill. What is the Minister's definition?

Lord Whitty

It is not a question of numbers of dogs; it is a question of intention to hunt.

Lord Stoddart of Swindon

I must return to the question of the householder who sets his dog on a fox which might invade his garden or on squirrels, hedgehogs and all kinds of wild mammals which might do so. It is an important point.

The argument has revolved around fox hunting but has widened. There seems always to have been an argument between the town and the country and the Bill appears to put the townies at risk, too. From what I heard the Minister say, 1 understand that the person who sets an Alsatian or any other kind of dog on any wild mammal other than those exempted under Schedule 2 will be committing an offence. It is important that every householder in this country, particularly if he has a large garden in an urban setting, understands that if someone goes out and reports him for setting his dog on foxes, squirrels or other wild animals not exempted, he may well be committing a criminal offence and he can be arrested, arraigned and fined £5,000.

The matter must therefore be clarified and that may well require an amendment to Schedule 2. If so, will the Minister still say he is not prepared to recommend the acceptance of an amendment which will protect people living in the urban environment that I have described?

Baroness Farrington of Ribbleton

I am trying very carefully to be as reasonable as possible. My noble friend the Minister has sat down five times before someone has asked for an intervention "before the Minister sits down". I have absolutely no desire to stifle questions or debate at all, but I sense from all sides of the Committee that Members are beginning to feel that questions are being repeated merely because the questioner does not like the answer. Noble Lords would be delayed a long time were that practice to grow and continue.

Viscount Astor

I should be happy for the Minister to reply to the noble Lord, Lord Stoddart, and then to hear from the noble Baroness. But it is Committee stage and it is important that the Minister gives us full replies.

Lord Whitty

I am grateful for the support of the noble Viscount, Lord Astor, in these matters. I thought that I had given a full reply. I said that where a person intentionally unleashes a dog or dogs on a mammal which is not exempted under Clause 8, it could constitute hunting under the Bill. Some of the examples which have been thrown at me fall under that category and some do not, but in relation to foxes it will include activity on one's own land.

Baroness Mallalieu

I shall not delay the Committee any more than I have to, save to thank all noble Lords who have contributed to the debate. Given that the Minister has said that intention is the key to criminality, I am profoundly surprised that that word appears nowhere in the Bill.

I had not thought that I would be unleashing a tide of slightly intemperate exchange when I introduced what seemed to me an amendment to which no one could take exception, whichever side of the debate they were on. Whatever course the Bill takes—whether regulatory or a ban—it seemed that it would be improved by clarifying the nature of the criminal offence that had to be proved.

The Minister said that the amendment is unnecessary. Presumably, it would have been possible for him to accept that word on the face of the Bill and avoid a considerable debate. No doubt it would have speeded up our deliberations.

I have very much in mind what the noble and learned Lord, Lord Lloyd of Berwick, said. I, too, am attracted by the second amendment, but I propose that the Committee should consider the first. For that reason, I wish to test the feeling of the Committee.

5.15 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 271; Not-Contents, 58.

Division No. 1
Ackner, L. Astor of Hever, L.
Allenby of Megiddo, V. Attlee, E.
Alton of Liverpool, L. Barker, B.
Ampthill, L. Barnett, L.
Armstrong of Ilminster, L. Beaumont of Whitley, L.
Arran, E. Belstead, L.
Ashcroft, L. Best, L.
Astor, V. Biffen, L.
Blackstone, B. Harris of High Cross, L.
Blackwell, L. Hayhoe, L.
Blaker, L. Hayman, B.
Blatch, B. Henley, L.
Bledisloe, V. Higgins, L.
Bowness, L. Hodgson of Astley Abbotts, L.
Boyce, L. Hoffmann, L.
Bradshaw, L. Hogg, B.
Bragg, L. Hogg of Cumbernauld, L.
Bramall, L. Holme of Cheltenham, L.
Brennan, L. Hooson, L.
Bridgeman, V. Howe, E.
Brittan of Spennithorne, L. Howe of Aberavon, I..
Brooke of Alverthorpe, L. Howe of Idlicote, B.
Brooke of Sutton Mandeville, L. Howell of Guildford, L.
Brookeborough, V. Howie of Troon, L.
Brookman, L. Hurd of Westwell, L.
Brooks of Tremorfa, L. Hussey of North Bradley, L.
Brougham and Vaux, L. Hylton, L.
Burnham, L. Inge, L.
Buscombe, B. Irvine of Lairg, L.
Byford, B. [Teller] Jacobs, L.
Caithness, E. James of Holland Park, B.
Campbell of Alloway, L. Jauncey of Tullichettle, L.
Campbell-Savours, L. Jellicoe, E.
Carlisle of Bucklow, L. Jopling, L.
Carnegy of Lour, B. Kimball, L.
Carrington, L. King of Bridgwater, L.
Carter, L. Kingsdown, L.
Cavendish of Furness, L. Kingsland, L.
Chester, Bp. Knight of Collingtree, B.
Chorley, L. Laing of Dunphail, L.
Cobbold, L. Lamont of Lerwick, L.
Coe, L. Lane, L.
Colville of Culross, V. Lang of Monkton, L.
Colwyn, L. Lewis of Newnham, L.
Condon, L. Lindsay, E.
Cooke of Islandreagh, L. Linklater of Butterstone, B.
Courtown, E. Lipsey, L.
Cox, B. Listowel, E.
Craig of Radley, L. Liverpool, E.
Crathorne, L. Livsey of Talgarth, L.
Crickhowell, L. Lloyd of Berwick, L.
Croham, L. Lucas, L.
Dahrendorf, L. Luke, L.
David, B. Lyell, L.
Davies of Coity, L. McColl of Dulwich, L.
Dean of Harptree, L. MacGregor of Pulham Market,
Denham, L. L.
Desai, L. McIntosh of Hudnall, B.
Dixon-Smith, L. Mackenzie of Framwellgate, L.
Donaldson of Lymington, L. Mackie of Benshie, L
Donoughue, L. MacLaurin of Knebworth, L.
Eames, L. Maclennan of Rogart, L.
Eccles of Moulton, B. Mallalieu, B. [Teller]
Eden of Winton, L. Mancroft, L.
Elder, L. Mar, C.
Elton, L. Mar and Kellie, E.
Erroll, E. Marlesford, L.
Evans of Temple Guiting, L. Marsh, L.
Falkland, V. Masham of Ilton, B.
Feldman, L. Mason of Barnsley, L.
Fellowes, L. May of Oxford, L.
Ferrers, E. Mayhew of Twysden, L.
Forsyth of Drumlean, L. Methuen, L.
Fowler, L. Miller of Chilthorne Domer, B.
Gavron, L. Miller of Hendon, B.
Geddes, L. Molyneaux of Killead, L.
Geraint, L. Monro of Langholm, L.
Gilmour of Craigmillar, L. Monson, L.
Golding, B. Montrose, D.
Gray of Contin, L. Moran, L.
Greenway, L. Moser, L.
Grenfell, L. Mowbray and Stourton, L.
Habgood, L. Naseby, L.
Hanham, B. Neill of Bladen, L.
Newby, L. Sharman, L.
Newton of Braintree, L. Sharples, B.
Nickson, L. Shaw of Northstead, L.
Noakes, B. Sheppard of Didgemere, L.
Northbourne, L. Shutt of Greetland, L.
Northbrook, L. Simon, V.
Northesk, E. Simon of Glaisdale, L.
Norton of Louth, L. Skelmersdale, L.
Oakeshott of Seagrove Bay, L. Skidelsky, L.
O'Cathain, B. Slim, V.
Oliver of Aylmerton, L. Smith of Clifton, L.
Onslow, E. Stallard, L.
Palmer, L. Stern, B.
Palumbo, L. Stevens of Ludgate, L.
Park of Monmouth, B. Stewartby, L.
Parkinson, L. Stoddart of Swindon, L.
Pearson of Rannoch, L. Strange, B.
Peel, E Strathclyde, L.
Peston, L. Swinfen, L.
Peyton of Yeovil, L. Tanlaw, L.
Phillips of Sudbury, L. Taverne, L
Pilkington of Oxenford, L. Taylor of Blackburn, L.
Platt of Writtle, B. Tebbit, L.
Plumb, L. Temple-Morris, L.
Plummer of St.Marylebone, L. Tenby, V.
Prys-Davies L Thomas of Gresford, L.
Randal of st. Budeaux, L. Thomas of Gwydir, L.
Rawlings, B. Thomas of Walliswood, B.
Rawlinson of Ewell, L. Thomson of Monifieth, L.
Reay, L. Tombs, L.
Redesdale, L Tordoff, L.
Redesdale, L. Trumpington, B.
Rees, L Tugendhat, L.
Rees-Mogg, L. Ullswater, V.
Renton, L. Vinson, L.
Renton of Mount Harry, L. Vivian, L
Richardson of Duntisbourne, L. Waddington L
Roberts of Conwy, L. Wade of chorlton, L.
Rogan, L Wakeham, L.
Rooker, L. Wallace of Saltaire, L.
Roper, L Walpole, L.
Ryder of Wensum, L. Walton of Detchant, L.
Sainsbury of Preston Candover, Warnock, B.
L. Weatherill, L.
Saltoun of Abernethy, Ly. Wilcox, B.
Sandberg, L. Wilkins, B.
Sanderson of Bowden, L. Williams of Elvel, L.
Sandwich, E. Williamson of Horton, L.
Scott of Foscote, L. Willoughby de Broke, L.
Scott of Needham Market, B. Wilson of Tillyorn, L.
Seccombe, B. Winston, L.
Selkirk of Douglas, L. Worcester, Bp.
Selsdon, L. Wright of Richmond. L.
Amos. B. (Lord President) Fookes, B.
Archer of Sandwell, L. Gibson of Market Rasen, B.
Ashley of Stoke, L. Goudie, B.
Avebury, L. Gould of Potternewton, B.
Bach, L [Teller]
Bassam of Brighton, L. Graham of Edmonton, L.
Berkeley, L. [Teller]
Billingham, B. Grocott, L.
Brett, L. Harris of Richmond, B.
Clark of Windermere, L. Harrison, L.
Clarke of Hampstead, L Haskel, L.
Corbett of Castle Vale, L. Hattersley, L.
Davies of Oldham, L. Howarth of Breckland, B.
Dholakia, L. Hoyle, L.
Dixon, L. Hughes of Woodside, L.
Dormand of Easington, L. Islwyn, L.
Dubs, L. Janner of Braunstone, L.
Evans of Parkside, L. Jones, L.
Faulkner of Worcester, L. Kirkhill, L.
Fearn, L. Laird, L.
Lockwood, B. Puttnam, L.
Lofthouse of Pontefract, L. Ramsay of Cartvale, B.
McIntosh of Haringey, L. Sheldon, L.
Massey of Darwen, B. Smith of Leigh, L.
Morgan, L. Thornton. B.
Morris of Manchester, L Walmsley, B.
Murray of Epping Forest, L. Watson of Invergowrie, L.
Nicol, B. Wedderburn of Charlton, L.
Orme, L. Whitaker, B.
Pendry, L. Young of Old Scone, B.

On Question, amendment agreed to.

Resolved in the affirmative, and amendment agreed to accordingly.

5.32 p.m.

The Deputy Chairman of Committees (Lord Geddes)

Before calling Amendment No. 2, I must advise the Committee that, if it is agreed to, I shall not be able to call Amendment No. 3 due to pre-emption.

Lord Livsey of Talgarth

moved Amendment No. 2: Page 1, line 4, leave out from "he" to end of line 5 and insert "expressly encourages a dog to hunt a wild mammal that can be shown to be present, unless his hunting is registered or exempt

[Amendment No. 3 not moved.]

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

Baroness Mallalieu

We were unaware of the result of what was said a little earlier—that is, that Amendment No. 2 would result in a pre-emption of Amendment No. 3. Can that be checked because I believe that I and other Members of the Committee were not aware of it? I wonder whether the noble Lord, Lord Livsey, was aware of that.

Baroness Farrington of Ribbleton

It was stated very clearly for the benefit of the Committee. The Deputy Chairman of Committees made it plain that, if Amendment No. 2 were carried, Amendment No. 3 would not be called through pre-emption. It was clearly heard and Amendment No. 2 was moved and agreed to.

Lord Lloyd of Berwick

It does not seem to me that Amendment No. 3 can arise because the word "registered" is included in Amendment No. 2. Therefore, as I understand it, the noble Baroness should be perfectly happy.

Clause 1, as amended, agreed to.

Lord Mancroft

moved Amendment No. 4: After Clause 1, insert the following new clause—


(1) Hunting by an individual is registered if he is the subject of individual registration in respect of—

(5) (a) wild mammals of the species hunted, and

(6) (b) the area in which the hunting takes place.

(2) Hunting by an individual is also registered if—

  1. (a) he participates in hunting by a group,
  2. (b) at least one of the group is registered under a group registration in respect of—

11 (i) wild mammals of the species hunted, and

12 (ii) the area in which the hunting takes place, and

15 (c)his participation in the hunting is recorded under arrangements made in pursuance of section (Automatic conditions of group registration) (5).

(3) Hunting by an individual is also registered if—

  1. (a) he participates in hunting by a number of individuals, and
  2. (b) one of the individuals is the subject of individual registration in respect of—

20 (i) wild mammals of the species hunted, and

21 (ii) the area in which the hunting takes place, and

(c) the condition of registration imposed by section (Automatic conditions of individual registration) (5) (maximum number of hunters) is complied with.

(4) In this Act— group registration" means registration under Part (Registration) pursuant to an application under section (Application on behalf of group), and individual registration" means registration under Part (Registration) pursuant to an application under section (Application by individual).

The noble Lord said: In her opening remarks the noble Baroness, Lady Mallalieu, helpfully pointed out to the Committee the purpose of the bulk of the amendments that she, the noble Lords, Lord Donoughue and Lord Carlile, and I intend to move. The purpose of the amendments is to return the Bill to its original architecture, as it was when the Government introduced it to the other place.

In answering the first amendment, the Minister in the rather sad, heated exchanges that took place at the end of the debate—untypical of this House and I hope that they will not be repeated during the course of the Bill—made it clear that he found himself in unique circumstances. The Minister is right; these are unique circumstances.

Last December the Government introduced a Bill into the House of Commons—a government Bill, not surprisingly—and as the noble Baroness explained, that Bill was not just changed at Report stage in another place, but completely wrecked. Those were the Secretary of State's words and the Minister's words. The Bill arrived in your Lordships' House in a very different state from that which the Government intended. At the very earliest opportunity the Minister, in answering the many questions and points raised from all sides of the Committee, has said that realistically the Government do not have a view. He said that he would listen to the amendments but he would not advise the Committee whether to accept them or not. However carefully one listened to what he said, it was difficult to discern what the Government now want. They have produced a Bill but they have lost their Bill, although they still claim it is their Bill and now it has come here.

I do not think that any Member of the Committee wishes to be unreasonable, but we have received no guidance from the Government at all on the Bill: whether they want it; whether they do not want it; or whether they want it changed or amended. The noble Baroness, Lady Mallalieu, suggested the best route forward, which is to return the Bill to its original form, based on the principles that stemmed from the evidence. It is worth remembering that the Government commissioned the report of the noble Lord, Lord Burns, at considerable cost in terms of time and effort from a great number of people—experts, the general public, the noble Lord, Lord Burns, and his team, my noble friend Lord Soulsby and others. They then engaged in a massive consultation exercise at great expense and trouble—I hate to think what it cost the public purse. They made their views, intentions and plans public; they debated them, discussed them, met all the groups, took all the matters forward and produced a Bill.

The Government now appear to have abandoned that Bill. They have abandoned it not because that was the Government's policy nor because of the improvements that the House of Commons has made to it, but because both the Secretary of State and the Minister have made it clear that the Bill that we now have, or had when it came into this House, is wrecked. Other words that were used are "unenforceable" and "unworkable". That Bill has been dumped in your Lordships' laps without any hint of what the Government think we should do with it, except to leave it alone.

I suppose that the only thing we can reasonably do—like the noble Baroness, Lady Mallalieu, we wish to be nothing but reasonable—is to attempt to proceed and to give the Government the Bill that they started with, that they wanted, that they planned and consulted for, that they spent money on and that they worked for all that time. We can give it back to them in the best and most reasonable way that we can. I cannot see that we can do anything else.

In the first amendment the noble Baroness looked at definitional and criminal: problems. Before doing so, she went through the history of how we have reached our present position. The two previous Bills—the one introduced by Mr Foster in the other place in 1997 or 1998 and then the Government's "options" Bill—were primarily Bills to ban this particular activity—hunting. However, badly or well it may have been defined, that was the object—a ban.

The significant factor from a political point of view is that those Bills were supported by the Prime Minister. He may not have voted for them quite as often as he thought he did. We know he has a problem with fact and fiction, but we shall gloss over that. We know that if he had thought about voting he would have. Let us not make a fuss about that. He supported them. The Deputy Prime Minister, the then Secretary of State of that department, Mrs Beckett, and the Minister who sponsored this Bill, supported both those banning Bills.

We then had the report of the noble Lord, Lord Burns, the public consultation, the Portcullis House hearings and everything that went with it, which, as the noble Baroness said, was in the public domain. The result was a Bill which centrally did not ban the activity. The reason for that is that all that consultation, all those public hearings and the Portcullis House hearings recorded quite clearly that there is not a reasonable, legitimate case for a ban. The Government recognised that, whether or not they liked to admit it. Therefore, the Prime Minister, the Deputy Prime Minister, and the Secretary of State, Mr Michael, put their names to a Bill which was publicly based on principles which stemmed from the evidence which showed quite clearly that you cannot ban this activity.

So, in principle, this Bill and the Bill in its original form are completely different. One had the principle of a ban, which was supported by those people as such. This Bill, when it came into the House of Commons, was completely different. It did not have that ban because they could not justify it. Now, thanks to the activities and behaviour in the House of Commons we have a Bill with the principle at its heart torn out. That is the Bill we have and the one with which we have to deal.

It seems to me and to other noble Lords that the way, therefore, to deal with the issue is to put back the registration process. The registration process allows hunting in regulated form to continue. That removes the ban. By removing that registration process in another place the Back-Benchers turned the Government's Bill into their own toy. I do not know what we should do because we are receiving no guidance from the Government. However, it seems to me that the responsible thing for this Chamber to do is quietly, responsibly and gently to put back as best we can the principle that the irresponsible Members in another place ripped out. We like to be helpful.

Registration was put in the Bill in the first place because all the evidence pointed—and it is very important to make this single point—to the fact that hunting is not cruel. The supposed reason why people have wanted for years to ban hunting is that it is cruel. In fact, one of the most interesting things about this process since 1997—the Burns report, the Portcullis House hearings and all the consultation—is what the evidence has shown. For example, the Portcullis House hearings brought together experts for the first time. They were asked to explain and to express in public what their views on welfare were and how these things work—difficult questions.

I have been involved in this debate now for many years. If I have not met those scientists personally, I have read their works. I know that many of the leading welfare scientists in this country were never particularly keen on hunting. They were not very interested or thought that it was not a significant welfare issue. I suspect that quietly they were not very keen on it.

During the public hearings, those scientists were questioned, asked to present papers and to think about these issues. It was very interesting to see so many of them move their views. Those views are still moving. There is, as the noble Lord, Lord Burns, says in his report, an extraordinary shortage of accurate science in the relevant areas. But there is a little. Most, if not all, of it produces evidence that comes down to the fact that hunting is not actually very cruel. It does not appear to cause a great deal of stress. It certainly measures up extremely well when compared with other methods.

Most of these things are extremely difficult to measure. The noble Baroness talked about the principles that emerged from the Portcullis House hearings. One matter upon which virtually all the scientists were agreed was that you cannot actually measure suffering. It is impossible to measure the suffering of a fox being hunted, compared with a fox being shot at, poisoned or snared. There is no barometer of suffering to which we can refer. If one asks scientists to talk about what they know about stress, distress and animals' reactions, they will say, "Well, actually, the more we think about it, the more we realise that hunting is probably the least stressful, the least distressing and causes the least suffering". The debate is slowly moving in that direction.

Two substantive pieces of science have appeared in the past six months. The Middle Way Group's report on shooting came down enormously in favour of hunting, not I may add because shooting was bad, but because of best practice. Foxes shot by qualified people who know what they are doing is an extremely good method of control. In some areas it is the only method of control. Equally, if done badly—as is anything done badly in this world—it is not a good idea. That is one of the points that the Middle Way Group has been making. I never focused on it at the beginning, but of course it is right. It is not a question of all shooting being good or all hunting being bad or all anything being good or bad, it is about best practice. One of the original Bill's problems is that it does not take any account of that at all.

Casting one's mind back to what the noble Baroness was saying earlier, one thing the noble Lord, Lord Burns, makes clear in his report is that most of the problems with hunting would best be dealt with by regulation, by changing the way hunting is carried out. Most internal changes to do with hunting that could be carried out now have been. I have no doubt that there will be more in the future. The issue is about better regulation, not about banning.

The point that we had reached when the Bill appeared was that a ban was not justified. The Bill starts rather strangely with the fact that hunting is banned unless it is exempt. The exceptions are exempt hunting and registered hunting. That is an unusual roundabout way of going about things. The fact is that it was registered hunting that comprised the bulk of the Bill introduced way back in December of last year, which we are now looking at in the third week of October, after the Government have spent so long dragging it tortuously and rather incompetently through both Houses.

We shall be looking at the different aspects of suffering and at the tests in registration later on in Committee. Those subjects are not for today. The centre of the original Bill was the registration process. The amendment—the first on this subjects-defines who may be registered, not the qualifications, or how or what they have to do.

There are two distinct groups of people to be registered. There are individuals who may be registered. Although the bulk of the debate in the popular press and certainly in the House of Commons concerns people with red faces and red coats, the vast majority of hunting in this country—I suppose 90 per cent—consists of individuals hunting with their own dogs and on their feet. So, as with so much of this debate, ignorance and prejudice pushes the wrong parts of the subject to the fore. The reality is that most people who will seek registration under the Bill, if it ever becomes an Act, will be individuals.

So there are two categories of people to be registered: the first is individuals; the second is groups. As I said, this is the first of a tranche of amendments intended to reintroduce the registration process—to give back to the Government the Bill that they introduced. I hope that when they get it back they will be pleased and like the Bill that we have given back to them—doing their work for them; I am always happy to do that.

I hope that we can take some of the heat out of this debate, because that is what your Lordships are best at doing and what your Lordships are here to do: to revise or amend Bills that have got into a muddle on their way through the House of Commons. I do not think that it is controversial to say that on its way through the House of Commons, this Bill got into an awful muddle, but with this amendment, I hope to start to return it to a workable piece of legislation. I beg to move.

Baroness Byford

moved, as an amendment to Amendment No. 4, Amendment No. 5: Line 5, leave out "the" and insert "one or more The noble Baroness said: This group of amendments are amendments to the amendment moved by my noble friend Lord Mancroft. At the outset, I should say that I support his Amendment No. 4, which brings important matters before the Committee. If I may, I shall speak first to the amendments individually and explain my reasons for tabling them, before returning to make a few more comments on Amendment No. 4.

I move amendment No. 5, but speak at the same time to Amendments Nos. 9 and 14, because they all fall under the same banner. The amendments would enable an individual or group registration to apply to hunt more than one species of wild animal. The Bill as drafted may be read to provide that registration is permitted to an individual or group in respect of only one species. There was a substantial debate on that in another place.

Most hunts currently recognised by one of the official hunting associations are of quarry species—in other words, those hunts registered with the Masters of Foxhounds Association hunt foxes. However, gamekeepers use dogs to hunt a wide variety of wild animals as part of their species management activities. As the National Gamekeepers' Association notes, about 4,000 gamekeepers regularly use their dogs in the necessary control of fox, mink and stoat. The same gamekeepers on occasion use their dogs in pursuit of deer.

Gamekeepers could find that they had to make three applications for fox, mink and stoats. That is unnecessary bureaucracy. Similarly, I understand that terrier men who are called out to deal with wild mammals where they are a problem use working terriers. Those terriers may be used for more than one species of wild animal.

During the recess, when I was in Wales, I was talking to someone who acts as a hunt servant of his local hunt. He reminded me that in certain parts of the country—especially in Wales—farmers often call on their local hunts, especially at the start of a lambing season, because of the trouble with foxes. The request is for the use of more than two dogs—often seven or eight—to clear predatory species from the vicinity of the lambing area.

I now turn to Amendments Nos. 6 and 10, which, after the word "species", would insert the words "to be". They are probing amendments to try to improve the amendment so ably moved by my noble friend. The effect of the amendments is consequential on Amendment No. 5, which I have already described. Its purpose is to tidy up the drafting to ensure that the correct sense of this part of the Bill is established.

I now turn to Amendment No. 7 and speak also to Amendments Nos. 11 and 15. As Amendment No. 4 is drafted, it requires of an individual or group registration that the application must specify the area in respect of which permission to hunt is sought. Existing hunts operate over considerable distances. For all packs registered with one of the hunting associations, there is a designated hunt country for each pack and hunting will take place in different parts of that country on different days.

Registration will last for three years, during which time the area covered in which gamekeepers or hunts operate may expand or, indeed, retract. If it expands, it could be due to the shooting captain obtaining rights to shoot over a neighbour's land; a hunt clearing more country over which to hunt owing to a change of landowner; or, for example, hunt amalgamation.

Moreover, hunts provide a call-out service for farmers within their hunt country that can necessitate their travelling to a large variety of areas within that country. It is unnecessary for me to remind your Lordships how important that service is now that we have a ban on fallen stock being buried. That service is hugely important.

By defining an area for the registered hunt or gamekeeper employed on an estate, it will be harder for those using other working dogs, such as terrier dogs or long dogs, on a call-out basis to define the set area. It will also be hard—if not impossible—for them to be sufficiently familiar with every farm or house on which they may be called to visit to satisfy the utility test without conducting research. At present, they respond to landowners as and when required, whether in the urban or rural environment.

I now turn to Amendment No. 8, and with it, Amendments Nos. 12 and 16. The effect of these amendments reflects on the previous amendments to which I have just spoken. It would be problematic for hunts or individuals to specify the area in which hunting takes place if that is understood in a restrictive sense. For the reasons I have set out, those wanting to hunt must be able to specify more generally areas in which hunting may take place, or is intended to take place—not that it necessarily does so. Those are important amendments.

I now turn briefly to Amendment No. 13. It would leave out from "place" to the end of line 15. It would remove the requirement for an individual hunting in reliance on a group registration held by another from being subject to the requirement for his name to be recorded under the amendment's provision: "(Automatic conditions of group registration)(5)". It is a serious question of civil liberties that people should be free to participate in a lawful activity without undue interference from the state. If the registered person is hunting and others are following that activity, there should be no requirement for those others to be recorded. That is all the more important as there is a real threat of animal rights violence directed against people who participate in hunting and whose identities are known.

In that context, I ask the Minister to clarify what he was unable to clarify earlier when he was asked about those taking part in hunting. From what I have read of the debate in another place, those who must be registered for hunting are those who actually hunt. The Minister was questioned during debate on the previous amendment about whether followers would be included as part of those who were hunting. If I remember correctly, the noble Lord said that those foot followers were obviously not involved in the hunt. But he did not clarify for us—and he needs to— whether those on horseback who are not involved in the hunting, but are followers or participants, will also be caught within this particular section.

A person following a pack of hounds via lanes in a car would appear to be hunting. I seek clarification. As Rob Marris told the committee on 28th January, all those who control dogs are hunting; not all those who are hunting control dogs. I ask the Minister whether that means that followers, on foot or on horseback, are or are not hunting.

Publishing the identity of those who participate in a hunt could raise serious issues under the data protection legislation and international human rights obligations, with no significant identifiable benefit to animal welfare to balance the intrusion on private life.

Followers of the hunt have precious little, if anything, to do with the process of hunting, as we have already debated in great detail. Thus the detail should be of no concern to the public or prescribed animal welfare bodies. Indeed, as the Minister stated himself, the enjoyment is a side benefit. He said that he regarded any enjoyment that people may experience from being in the open air and so on as relevant to the judgment that Parliament wishes to make or the judgment which people make on its behalf.

When Defra issued permits to hunt following the foot and mouth crisis, a condition of the permits was that a record be held by the hunt of the names and addresses of the followers to be made available on request to Defra. A daily record of the area hunted had to be submitted to Defra within 48 hours for the very good reasons which we know. But it raises issues about where the Government stand now.

I am sorry that these amendments are grouped as they are, but I understand why that is so. I hope that my explanation of these amendments has helped to clarify some points. I remind Members of the Committee that they are probing amendments and that I do not wish in any way to detract from the main thrust of the amendment moved by my noble friend, which is extremely important. I beg to move.

6 p.m.

Lord Hoyle

I rise to speak because of some remarks made at the beginning by the noble Lord, Lord Mancroft. He said that the intention was to introduce amendments that would return the Alun Michael Bill from this House to another place. That is how I understood the noble Lord. If I am wrong on that, I am sure that he will correct me.

As I understand the amendments to registration and its different aspects, they go a lot further than the Alun Michael Bill. Is it not the intention with these amendments to bring back deer hunting? That is my interpretation and it is a lot wider than the Alun Michael Bill. What happens with regard to hare coursing? Are they going to take away all controls over that activity? That was not in the Alun Michael Bill. There is the question of whether the tests of utility and cruelty will be severely weakened. I speak for those reasons and to say that it is misleading to suggest to the House that all that is attempted is to take back to another place the Alun Michael Bill as it was originally. I believe that what is proposed goes far wider in an attempt to take us back to deer hunting and to weaken the controls established in the Alun Michael Bill.

Lord Mancroft

I am most grateful to the noble Lord for giving way. There is a series of amendments, but I am moving one amendment at the moment. It is exactly as it was worded in the Alun Michael Bill. When speaking earlier, the Minister said that through our amendments we were planning to dilute the Bill. I am not sure whether that is the word he used, but I believe that that is what he implied. That may be his view.

It is true that at later stages later in the Bill we have other amendments and do not deal with the matter in one go, as Mr Banks did. We have divided it so that the Committee will have a reason to look at the issues and discuss all the amendments. We do not believe that we have watered down the Bill. In some places the Government's Bill, as with all government Bills, is not particularly well drafted. We will point out those changes to the Committee. We do not believe that they are hugely significant. It may be that the noble Lord will consider that they are and no doubt he will tell us at that stage. There is no intention to disguise the matter from the House. Where we have felt it right to amend the original Bill we shall put it before the Committee and hear what it has to say. It will decide.

The amendment before the Committee at the moment is word for word as it appeared in Alun Michael's Bill, as will be the vast majority of the amendments that we shall move. We shall take the trouble to take the Committee through them as carefully as we can so that we can explain exactly what is intended. I do not believe that some of the material is particularly good. For example, in the first amendment moved by the noble Baroness, Lady Mallalieu, there clearly needs to be an intention and the Committee agreed with that. There will be other parts of the legislation which have to be dealt with in the same way. We wish to deal with the issues openly, calmly and reasonably. Perhaps, one day, that will be an example that another place might like to follow.

Lord Hoyle

I thank the noble Lord for his frankness. I believe we can agree that the intention is eventually to go far wider than the Alun Michael Bill and certainly to bring back deer hunting.

Lord Waddington

It is a very small point. I know that the noble Lord does not wish to mislead the Committee in any way, but in a sense it is slightly misleading to speak about the Alun Michael Bill. It was not his Bill but the Government's own Bill, which we should bear in mind the whole time.

Lord Hoyle

I do not mind how it is defined. What is intended is to go far wider and dilute and weaken the Government's Bill.

Lord Davies of Coity

In raising this question on the amendments and addressing hare coursing and deer hunting, do I understand from my noble friend Lord Hoyle that if it is limited to the Alun Michael amendment that he will support it?

Lord Hoyle

I did not say that. The point I am making is that we must not mislead the Committee by amendments being made to the Government Bill which makes it far weaker in every respect.

Baroness Farrington of Ribbleton

I wonder whether it would help to make the debate run more smoothly if Members of the Committee were to speak to the mover of the amendment. It is quite complicated to follow when individual Members of the Committee have a duologue across the Chamber.

Lord Donoughue

I support all that the noble Lord, Lord Mancroft, said in proposing the restoration of the process of registration and regulation. I say to my noble friend that it is not taking anything wider. It is the registration process which was in the original government Bill and there is no taking matters wider on this amendment.

The Bill had defects, which did not please everyone totally, but it pleased virtually everybody to a considerable extent. It followed six months of consultation and scientific evidence. Ultimately, whatever our reservations, we saw it as broadly a fair Bill. It provided that alleged bad practices in hunting should be dealt with.

The banning Bill is unfair. It is based on prejudice and intolerance. The Minister, when opposing the proposals at an earlier stage in the House of Commons, used such phraseology. I am simply agreeing with him. The Bill is probably unenforceable, as the noble Lord, Lord Hurd, said in a very impressive speech at Second Reading. I believe that animal suffering would be worse under the ban.

I shall not repeat Second Reading arguments. I wish to speak in narrow terms, particularly to my Labour colleagues. I hope that we will not lose Members of the Committee opposite; I ask for their tolerance. I suggest to my noble friends that the restoration of regulation and registration is based on democratic Labour principles. I use the word "democratic" because, historically, some socialist principles were unacceptable and, like the ban in some respects, draconian in their attempt to deal with issues.

My first point is obvious. The regulation process was a central part of what was a Labour government Bill. Labour Ministers argued strongly and impressively against a ban. Secondly, the Bill is totally acceptable because it is fair. It is neither discriminatory nor socially divisive, as the ban is. The best of Labour's social policies have been based on fairness and anti-discrimination—Members of the Committee opposite will not always agree. The proposed ban is unfair and certainly discriminates against a minority group.

My third point is central. The process of registration and regulation is now a mainstream Labour approach in many areas. It secures that the activities of private groups are subject to public accountability. The genuine concerns on my side of the Committee about cruelty in hunting are met by the regulation process. Those genuinely concerned about cruelty and suffering of animals should be satisfied with the Bill. I have not always been convinced that colleagues in another place have been concerned mainly with that.

The regulation process also secures good practice in hunting. In handling a Private Member's Bill, as I have done over the past two years, I have met many country sports groups. It has struck me that they all want good practice and the elimination of bad practice. The registration and regulation process proposed and described in the amendment achieves that.

Fourthly, the Bill should be very acceptable to all Labour colleagues, because it protects thousands of jobs in the countryside, whereas the ban creates serious rural unemployment. The Burns report said that it would take 10 years for the jobs lost to be reabsorbed in the rural economy. Perhaps not all my colleagues in the House of Commons share my belief that it is not a Labour approach to create unemployment in the way that the ban will.

We discussed the party manifesto earlier. Although I was concerned that it should be accurately recorded in full, it does not commit the Government to a ban on hunting, nor does it say what the conclusion of Parliament's deliberations should be. In addition, it does not say that it should impose the House of Commons view. It says that it will enable Parliament to reach a conclusion—Parliament, not the Commons.

For those five reasons, and as a lifelong Labour supporter and non-hunter, a ban would be offensive and against my Labour principles. In supporting the amendment, I call on my colleagues to do the same.

6.15 p.m.

Lord Livsey of Talgarth

The passing of Amendment No. 2 incorporates specifically the principles of registration and exemption. The new clause contained in Amendment No. 4 clarifies and defines registration. The regulations to be introduced will be specific to individuals, as defined in the amendment, and groups. They will also relate specifically to wild mammals and the area in which they are hunted. Registration is the civilised alternative to a ban. It underwrites good practice, which is an essential element of the principle of registration being debated in the amendment. The amendment is vital, as it clarifies registration and the question of participation, which it takes into account in provisions for group registration, for example.

The noble Baroness, Lady Byford, was honest in saying that her amendments were probing measures. I am sympathetic to that and shall be interested to hear the Minister's response. Amendment No. 4 defines registered hunting. Having accepted the principle, I feel that the amendment is necessary.

Baroness Warnock

I strongly support everything that the noble Lord, Lord Mancroft, said in moving the amendment. It offers the civilised way through the dilemma. This is a very familiar case of two diametrically opposed moral opinions on which no compromise is possible. If the concept of regulation, registration and, therefore, monitoring of what happens in the field is accepted, both sides of the moral dispute are likely to be more satisfied, if not absolutely satisfied, with the amendment. The concept of good practice is incorporated in the registration proposal.

The only respect in which I disagree with the noble Lord, Lord Mancroft, is trivial. He says that it is an odd approach first to provide in Clause 1 that hunting of mammals is an offence and then to give the exceptions. On the contrary, it is a common approach. Lawyers have a word for such a concept—perhaps defeasible. The same principle was observed in the very different circumstances of the Human Fertilisation and Embryology Bill, where the clauses on using live embryos for experiment and research provided first that it was an offence to use live embryos for research, with the regulations, time limits and other provisions coming next. That seems to me to be the essence of what is proposed in this amendment. It emphasises the extreme centrality of the concept of regulation. It is not an added something or other, it is the whole reason why the hunting of mammals with dogs is to be, in certain specified circumstances, permitted. The assumption is that unregulated hunting would be wrong. I admire the way the Bill will come out if this amendment follows Clause 1 and I strongly support it.

The Earl of Onslow

First, I unreservedly apologise to the Minister if I got too cross with him in the previous exchange. I am quite happy to have got cross, but not too cross.

On this particular issue of the amendment, let us assume for the sake of argument that it is just within the bounds of possibility that the Committee agrees Clause 4, or rather Amendment No. 4—"Clause 4" was a lovely Freudian slip. Can we then have an agreement from the Minister that the Government will accept the new clause, even if they may not like it, and that he will address his mind to making it better than it is at present. In other words, assuming that the amendment is carried, can we have an undertaking from the Minister that he will make sure that the new clause will be as good as it can be, even if he does not like it in the first place? I hope the Minister follows my meaning.

Lord Alli

I have never spoken in a hunting debate and after the first amendment I did not think I would ever participate in one again. I have listened to and read patiently much of what has been said in this House, in the other place and in the media. I have heard good sound arguments for and against hunting put with equal passion and vigour and the one conclusion I have drawn is that to believe this is a simple issue is very naive.

This debate, distilled into its simplest form, is about a person's right to kill an animal, which would otherwise have been destroyed, for pleasure versus the state's right to curb an individual's liberty using the criminal law. It is a question of individual freedom versus the views of the majority, not simply cruelty versus liberty. These are not simple questions and we in this House should not believe that there are simple answers. Simplicity is for the headline writers of the tabloid newspapers or the television news bulletins but not for this Chamber.

What we have before us today is an amendment that says to the other place, "Think again. Think again about a system of regulation before you take that final step and deprive our fellow citizens of a freedom they currently enjoy".

Ours is a complex system of government and law making, but this House does have a unique role; my noble friend Lord Graham of Edmonton referred to it. It can say to the other place, "Think again". Indeed part of its very purpose is to do just that. It is for that reason that I shall be supporting this amendment today. The Minister, in his Second Reading speech, said about the arguments put forward on the grounds of civil liberties: I know that a number of Members of your Lordships' House feel deeply, otherwise they would not be defending fox hunting. But I find those arguments particularly unconvincing and, at times, distasteful. To argue that the high principles of the European Convention on Human Rights—drawn up in the aftermath of totalitarianism and war—were in any sense designed to protect groups of people inflicting unnecessary suffering on frightened animals is ludicrous, as well as completely untenable in law". [Official Report, 16/9/03; col. 772.] Let me say to the noble Lord that I do not agree with his view. Freedom, in my view, is a precious thing. You have to want freedom very, very badly. You have to want freedom badly enough to allow two men to walk down a road, holding hands and kissing. You have to want freedom badly enough to watch British Muslims burn a Union flag. You have to want freedom badly enough to allow people to get onto horses and hunt.

Freedom does not come cheap. It is a hard concept. You really have to work for it. It was never easy, it is never easy and it will never be easy because there is always somebody who wants to deprive us of elements of our personal freedom to make us appear more just, or simply to allow government to perform their function.

This debate has ceased to be about facts, evidence or reason and I suspect it was probably naïve to believe that it ever could have been. It is about passion and belief and that is why it is here in this Chamber, because passion and belief are involved in what we do. I will never be convinced that the fox does not feel pain when the dog rips it apart. I will never be convinced that much of animal testing is right. I will not be convinced that the treatment of a veal calf is humane. I will not be convinced that stuffing grain down the throat of a duck or a goose is right or justified. I will never be convinced that fish caught on a hook, whether or not you throw them back into the river, do not feel pain. However I do not believe that because I do not fish, you should not and that we should use the criminal law to prevent you. Equally, I do not believe that because I do not hunt, we should use the criminal law to stop people hunting.

I have always thought that criminalising large sections of the otherwise law-abiding population is never a good idea. I say that with trepidation as I see the noble Baroness, Lady Thatcher, in her place and I refer your Lordships to the poll tax, or should I say the community charge?

I have listened to the animal cruelty argument, which I find in part unconvincing, but in the end this Bill is not about animal cruelty. If this Bill formed part of a wider package of animal welfare measures perhaps the arguments put forward on cruelty grounds might be more compelling, but it is not.

I say to the Committee, and particularly to those on these Benches, that I know that the hunting lobby has tried to put forward libertarian arguments before and I understand the sense of hypocrisy that you might feel at seeing those who have been among the most prejudiced and intolerant seeking final refuge in the libertarian tent. I have read speeches by noble Lords who talk of prejudice but who have resisted every piece of equal opportunities legislation and equal rights legislation and speeches by some noble Lords who think that universal suffrage is a step too far. I know it is difficult to listen to these arguments as they are deployed in a cynical and unconvincing way, but I ask noble Lords not to dismiss these arguments because of the people who make them.

I accept completely the legitimate right of the other place to disagree with registration. If it sends this Bill back much in the form that it was received today, I suspect we cannot stand in its way. But at this stage, in Committee, I believe we have a duty, that I have a duty, given the arguments that I have put forward, to say to its Members, "Think again". It is a difficult choice: individual freedom versus the views of the majority. It is a close call. I understand why for many cruelty overrides liberty. I have wrestled with this issue but in the end, for me, liberty must have her way.

Lord Eden of Winton

The noble Lord, Lord Alli, has made a most powerful speech. He is so right to remind the Committee that the liberty of the individual is at the root of our consideration during the course of these proceedings in Committee. I do not think that I should attempt to extend the debate any longer, or to add to what he has said, because he has said it with such conviction and force, but I remind the Committee that the Government, in their press handout in September 2002, stated: The future of hunting with dogs should not be decided on personal taste, but on evidence on the principles of whether or not it is serving an effective purpose in managing wildlife and whether it is more or less cruel than the alternative methods currently available". There has been ample opportunity for consideration of both principle and evidence. The Government carefully considered the evidence, and on that basis they brought forward the original Bill that contained clauses for registration. It is that which should be reinstated in the Bill and 1 so agree with the noble Lord who has just spoken that it is the right and duty of this House to ask the other place and especially the Government to think again.

6.30 p.m.

Lord Brennan

The primary duty of this House in enacting criminal law—and this is criminal law—is to ensure that it represents the view of most of our people, that the acts in question are properly to be regarded as criminal and properly to be dealt with by the criminal court. That question involves the exercise of each of us in fulfilling a parliamentary duty of deciding whether the Bill satisfies that test. I wish to raise an issue for consideration about that question, which involves an issue of governance. On Second Reading the Minister said: This is a difficult situation for the House and, in many respects, the Government".—[Official Report, 16/9/03; col 888.] He was right. I amend the quotation in only one regard: it is a difficult situation for both Houses.

In a healthy democracy, it is inevitable with a bicameral system that the two Houses disagree from time to time, and very seriously disagree. Three solutions occur. First, this House could accept the Salisbury convention and a manifesto commitment and pass the law. Or, the Government could decide not to pursue the legislation, for whatever reason. We now face a third alternative used in recent times in a serious dispute between the two Houses in which it is said that a free vote of one House enables that House to prevail regardless of the Salisbury convention and regardless of the Government's position.

I raise this as a question and have no firm conclusions to draw, but I want the House to consider this issue. We accept the Salisbury convention relating to a manifesto commitment because we interpret that approach as meaning that we have accepted not just the will of the Commons or the Government, but the will of the people expressed at a general election. Secondly, by dint of the Parliament Acts, the lower House—the Commons—has the power, should it exercise it, to force through legislation regardless of the convention. I accept that that is a democratic right that should exist, but it should be exercised with prudence. In the 80 years between the 1911 Parliament Act and 1991, including the 1911 Act, it was exercised three times. In 1991, the then Conservative government used the Parliament Act. Although I am making no comment about the integrity of my party— which has acted as it thought best—if this Bill is dealt with under the Parliament Act it will be the third in four years. That is a very serious matter for democracy for us to consider.

Of those three, the Sexual Offences (Amendment) Act was a free vote and this is a free vote. As for the two others, the European Parliamentary Elections Bill was a government Bill that the Government pursued with Whipping. The Criminal Justice (Mode of Trial) Bill failed in this House in 1999–2000 and the Government chose not to pursue it. In those two Whipped Bills, the Government decided what they thought best politically.

As with the Sexual Offences (Amendment) Bill, we are dealing with a free vote. Let us consider what has happened democratically. The Government went into an election—it could be any government—with a policy to ban fox hunting on a free vote. Having got that manifesto commitment, they employed a very substantial and serious course of public inquiry and consultation. Having considered everything that they had heard, they put a scheme to Parliament, which, because I have every confidence in my Government, I have no doubt that they thought best represented the will of the people.

If the House of Commons, by the exercise of a free vote, takes a different route from what the Government thought to be in the best interests of the people, as a democrat, I for one want that free vote to be explained to me as being taken and exercised by every MP on the conscientious basis that he or she was seeking to represent what he or she thought to be the best interests of most of our people—the will of the people. Otherwise, a free vote would be a capricious commodity in the hands of a House of Commons MP.

Has that happened in this instance? In the Sexual Offences (Amendment) Act, it did. Most people agreed with the Parliament Act route when it became necessary. Do they now? Can this House or the other responsibly say that most of the people in this country want to criminalise hunting in the form of this Bill? I am quite convinced as just one citizen among others that that cannot be plausibly argued. I ask the question, because it is worth the other House noting our concern: is this a proper Bill, the correct vehicle to employ the Parliament Act? It is a very serious question.

My noble friend Lord Graham talks about the amendments disembowelling the Bill, but they are disembowelling a Bill that has been created as a consequence of—in the Minister's word—"wrecking" his Bill. Can anyone plausibly say that, out of that disembowelled wreckage of legislative enterprise, the will of the people has been clearly expressed? I doubt it.

When my noble friend Lord Hoyle reads the debate again when we have time, he will find that, in substance, the Bill represents the Government's position—what they thought best represented the interests of our community. If the Bill goes back to the other House in an amended form, it is not a contest of power between two Houses, but a serious, honest disagreement in which each Member of each House should look to the responsibility he or she carries to the nation, not to his or her own opinions. I applaud this attempt to reach a middle ground, to resolve disagreement in the best interests of Parliament and the country. I firmly support the words of my noble friend Lord Donoughue and I hope that, although I have put a constitutional flavour on this, it will help us to maintain a view that is correct: the way that we deal with this Bill, majority or minority, liberty or cruelty, whatever it might be, we do so for the country.

Lord Waddington

Does the noble Lord agree that there is certainly no precedent for use of the Parliament Act when this House refuses to connive at the destruction of the Government's own Bill?

Lord Brennan

I am distressed that my very old friend the noble Lord, Lord Waddington, who led me many times at the Bar, has forgotten the objectivity that he used to exercise in those days. The fact is that we are not here involved in a party political debate. I have made it expressly clear that my comments were made as a democrat and not a Labour politician. I hope that the debate can continue in that vein.

The Lord Bishop of Chester

I should like to say from these Benches that the predominant view in speeches in previous debates has been to support a form of registration. I personally support the amendment and also, to a very large extent, the powerful and moving speech by the noble Lord, Lord Alli. However, I think that the principle of freedom does not stand alone but has to be qualified by other principles which are introduced in later amendments, in terms of utility, lack of cruelty and so forth.

I shall, if I may, flag up my own view. It probably is the time slightly to adjust the boundary of what is legal and not legal in the general area of hunting and field sports. I find that I can support fox hunting. I declare an interest in that I keep a few hens. I have five. Indeed, I am tempted to adopt the unique position of wishing to extend fox hunting to urban areas where I live, because until recently I had six.

It seems that there is a clear argument on the basis of utility to have fox hunting as part of the mix of the control of foxes. People may get a certain amount of pleasure from it, but, as long as that does not become the predominant argument, it seems to me to be perfectly possible. Human motives are often mixed. I find it much harder to justify the continuation of hare coursing. I shall come on to that later. My own view is that the principle of freedom which the noble Lord, Lord Alli, advocated, needs to be qualified in particular cases. That was true with the Human Fertilisation and Embryology Bill, where the 14-day limit was an absolutely clear barrier to the freedom of the medical profession and so forth.

So on those grounds I wish at this stage to support the principle of the amendment. I support in general terms the point made by the noble Lord, Lord Alli. As we move into a more multicultural, multi-faith and diverse society, as we are doing all the time, these issues of how we tolerate minority views that we ourselves would not particularly wish to advocate will arise in all sorts of areas. It seems to me that the more the criminal law can keep its limits clearly in sight and leave room for moral debate—which indeed one might have with my noble friend here—the better we will be. However, for the moment, I believe that the amendment is the right way forward. I shall vote for it.

Lord Sanderson of Bowden

I should like very much to support this amendment and to agree with the noble Lord, Lord Donoughue, on one particular issue that he raised. When you can read the book you do not have to look at the crystal ball. I live in the area where a Bill has become an Act and hunting has been banned. All I would say to the Committee is that before you go ahead and completely ban hunting in England and Wales, think very carefully about those who are very uncertain about their future in my part of the world as a result of the Scottish Executive passing that Bill. I believe that the noble Lord, Lord Donoughue, put his finger on it when he said to his colleagues, "Think very carefully about those involved in this work". It is work. They are dedicated people and they do not deserve to lose their jobs.

6.45 p.m.

Lord Elton

While congratulating the noble Lords, Lord Alli and Lord Brennan, on making a contribution between them of notable and constitutional importance, might I remind your Lordships that we are discussing Amendment No. 5 to Amendment No. 4 and that we have been straying very close to the borders of order?

I rise merely, first, to support the inquiry of my noble friend Lady Byford about the advisability of Amendments Nos. 5 to 12 and 14 to 16, all of which seem to me to be plain right. Secondly, on Amendment No. 13, which addresses the issue of group registration, it really is impossible to form a view until one knows who will be registered. We have had this discussion once or twice before, but we really need to know whether it will be the 150 or 200 people following by all sorts of means—a handful of them perhaps on horses, perhaps more—or whether it is aimed at the master of the hunt, the huntsmen, the two or three whippers-in, the kennelmen, the groom at the stables or the committee which arranges the finances. Those are two quite different concepts. One of them is feasible while the other seems not to be. Keeping a record of all those who had followed on a bicycle three miles away is not feasible. We therefore need a definition of what hunting is. We have proposed inserting "intentional", but I suspect—and this is perhaps a point to return to on Report—that we need a closer definition before we can do more than nod at these amendments and then go back to the great sweeping oratory on Amendment No. 4, which I, like others, wholly support.

Baroness Golding

I support the amendment moved by my noble friend Lord Mancroft and shall speak to the need for the registration of the hunting of mink with dogs. As I said in a previous debate, the Government have signed up to the European Convention on Biological Diversity, which commits them to, control and eradicate those alien species which threaten ecosystems, habitats or native species". Having signed up to the treaty, the Government have committed themselves as far as possible to the eradication of that very alien species, mink.

There is no evidence that mink can be eradicated or controlled by trapping alone. Indeed, the expense and inefficiency of the use of traps have without doubt led to the spread of mink in many areas of this country. The Game Conservancy Trust at Fordingbridge recognises the problem only too well and has recently successfully tested the idea of a raft which can identify the presence of mink. Subsequently a baited trap is placed on the raft to catch the mink and the mink are then shot. Those scientists have the good sense to recognise that mink are not easy to catch by traps alone and that there will always be a need for hunting mink with hounds. They are not the only scientists to recognise that need.

Scientists involved in the £1.6 million mink eradication scheme on the Scottish Hebrides have found themselves proved wrong by mink hounds in areas that they thought were free of mink. Indeed, the evidence produced by the scientists running the programme leads one to the conclusion that, unless trap-shy mink are recognised, and the very real need to train people in the use of mink hounds is recognised, then the large-scale and expensive eradication programme will not be successful and the £1.6 million spent will perhaps have been wasted.

Those scientists point to the fact that the Icelandic Government rely on dogs as their primary weapon to locate mink, which are then dispatched by shooting. About 6,500 mink are culled in Iceland every year, at an average annual cost of £150,000. No one knows how many mink there are in this country but estimates vary from 18,000 to 50,000. We can only guess at the cost of eradicating them. The nature department of the Icelandic Government have all the evidence to show that mink hounds are essential for the control of mink. The Government should listen to their scientific evidence and allow hunts to be registered. In doing so, the Government would recognise their commitment to the Convention on Biological Diversity. They would go some way to answering the damning report of Defra's European wildlife division on the lack of action in their commitment to the convention. I most strongly support the amendment.

Baroness Farrington of Ribbleton

I support the noble Lord, Lord Elton. Most Members of the Committee who have spoken have spoken to Amendment No. 4, which is not before us. Unless any Member of the Committee wishes to speak to Amendments Nos. 5 to 16, which are amendments to Amendment No. 4, moved by the noble Baroness, Lady Byford, the Minister could reply and the noble Lord, Lord Mancroft, could indicate whether he is prepared to accept the noble Baroness's amendments.

Lord Willoughby de Broke

My understanding is that Amendment No. 4 is grouped with the other amendments.

Lord Whitty

For clarity's sake, Amendment No. 5 and the rest of the noble Baroness's amendments are amendments to Amendment No. 4. But the first issue must be how we deal with Amendment No. 5 and, should the noble Baroness care to move them, the subsequent amendments to Amendment No. 4. Indeed, most of the discussion has been on the substantive amendment— that is, Amendment No. 4.

I did not agree with a great deal of what the noble Lord, Lord Mancroft, said, but he is correct to say that Amendment No. 4, of itself, is precisely the same wording as what had been the second clause of the original Government Bill in another place. For those Members of the Committee who think that it is wise to go back to the Commons, after it rejected overwhelmingly that approach, with something very similar to the original Bill, clearly there is an argument for voting for Amendment No. 4.

However, the noble Lord, Lord Mancroft, was also frank enough to indicate that this is part of a package, although we have the right to vote in different ways on different parts of the package. As far as concerns the noble Lord and his colleagues who have put their names to the various groups of amendments—most of which come after Clause 5—-the effect would be to change the original Bill quite substantially. At this stage, it is probably not wise for me to spell out how the subsequent amendments would change the Bill. However, if Members of the Committee buy into this clause, they are also buying into a potential strategy which does not deliver the "Alun Michael" original Government Bill, but delivers a Bill which is much wider, much more diluted and much more preserving of the status quo.

I say to my noble friend Lord Alli and to others that there are limits on liberty. In the "Alun Michael" Bill, which has been described as not a banning Bill but a registration Bill, there were a great number of things which were banned. Deer hunting was banned; hair coursing was banned; non-registered hunting was banned; and the hunting of all sorts was subject to some very significant restrictions. There therefore would have been banning and a significant restriction on the liberty of a minority of people in the "Alun Michael" Bill. The distinction is therefore not between liberty and authoritarian limitations on liberty, but just how far one wishes to restrict liberty. That is a legitimate debate, but let us not say that it is a central principle.

As regards the rest of the amendments tabled in the names of the noble Lords, Lord Mancroft and Lord Carlile, and my noble friends Lady Mallalieu and Lord Donoughue, if they are all carried we would move significantly away from the "Alun Michael" original Government Bill. It is also true that if the amendments before us in the name of the noble Baroness, Lady Byford, are carried, we would also move, maybe not quite so dramatically, but significantly, away from the original Bill. Effectively, the noble Baroness's amendments would allow someone to register for any species in any part of the country and be allowed to pursue hunting for any other species in any other part of the country.

Therefore, under the terms of the original Bill—to take my noble friend Lady Golding's point—if a person was registered and had passed the utility and cruelty tests in relation to mink, that person would, in an entirely different part of the country, be allowed to engage in hunting for an entirely different species. That was not the principle of the original Bill, which was to look at registration on a case-by-case basis and judge it on the terms of utility and least cruelty.

While the substantive amendment would be in line with the original Government Bill, the noble Baroness's various amendments would take us a significant way away from it. It is up to the noble Lord, Lord Mancroft, to decide whether he would be prepared to accept those amendments. Were he to do so, he would amend Amendment No. 4 away from what he originally claimed it was—namely, the basis for introducing the "Alun Michael" Bill. We shall return to the rest of his package of amendments—it is to be hoped in part, at least, this evening, but if not, next week—which, as I have indicated, move away from the "Alun Michael" Bill. In terms of the noble Baroness's amendments, we would already do that if the noble Lord accepted her amendments and Members of the Committee voted for them.

In respect of one particular amendment, the noble Baroness asked me to clarify, yet again—or for clarification even further than I thought that I had clarified before—the distinction between those engaged in hunting and those who are followers of hunting. This was in the terms of the original Bill, although some of the provisions would read across to the Bill now before us. It is clear that in any given circumstance for a given hunt, it would be a question of fact; that is, whether a person is hunting with dogs or merely watching people who hunt. That would be irrespective of whether such people were on foot or on horseback.

In normal circumstances, those who are hunting as part of the hunt would be deemed to be hunting under the terms of the Act. Those following, particularly those following, for example, in a road vehicle, would not be. In terms of judging whether an offence has been committed, if those people were not registered or if it was an unregistered hunt, clearly that would have to be judged on the facts of the case. In principle, those engaged in the hunt are required to be registered. Those following the hunt would not be required to be registered if they are not part of the activity itself.

The Earl of Onslow

The Minister is in danger of being "horsist". He is saying that those who follow on a horse are committing an offence, but those who follow in a car are not. I may have misunderstood, but he particularly said that those who follow are not hunting. That is what I understood him to say. He implied that those who follow in cars would be all right, but those who follow on horses possibly would not. I thought he was being "horsist"; that was all.

Lord Whitty

I carefully tried to avoid being "horsist" in this particular context. In a normal hunt there are horse people who are clearly engaged in the hunt from the word go. There may be other horse people who are, like a car, going down the lanes to catch up with the hunt or to get a view of the hunt at some different point. There may be others on foot who might be doing the same thing. There will be some forms of hunting where people on foot are clearly engaged in the activity. So it is not a "horsist" or a "carist" or a "footist" remark; it is whether one is engaged in the activity or a spectator in the activity.

Baroness Byford

I am grateful to the Minister for clarifying that last point. From what the Minister said, I can put it into layman's terms. I am trying not to put words into his mouth. He is referring to members of the hunt staff who would normally lead and control the hunt itself. He is excluding from those participating in hunting those who are in the field and not involved in the hunt itself. I am happy if the Minister wants to come back on that point, but we need to clarify that point. It is a major issue.

When we talked about this matter before—I have looked very carefully at what was said in another place— my understanding was that, on the whole, it is those who are involved in the activity of organising the hunt who are actually considered as hunting. Those involved in following the hunt, as hunt supporters either on foot or on horseback—it is particularly the horseback that we needed clarification on—are not involved in hunting. They are observers, or whatever else, but they are not engaged in hunting itself. I think that I have understood him to say that. I hope that I have not put words into his mouth.

7 p.m.

Lord Whitty

The noble Baroness has not put words into my mouth, but I think that we are in broadly the same territory. It is not only those who organise the hunt, it is also those who participate as against those who are spectators.

Baroness Byford

I think that the noble Lord and I are in total agreement. I am sorry that he is perhaps not quite happy with my words, but it is those who are actually involved in the hunt.

Time is moving on. I explained earlier to noble Lords that my amendments are probing in nature and seek to improve the Bill. I understand what has been said by many noble Lords and I should have liked to say more about Amendment No. 4 myself. However, the restrictions on time prevent me from doing so. At this stage, I do not wish to press these amendments. 1 shall withdraw them because it is clear that noble Lords want to consider Amendment No. 4, which would restore the Bill over which the Minister keeps slipping and referring to as "the Alun Michael Bill", but is the government Bill, set out in their words. For that reason and that one alone, I beg leave to withdraw Amendment No. 5.

Amendment No. 5, as an amendment to Amendment No. 4, by leave, withdrawn.

[Amendments Nos. 6 to 16, as amendments to Amendment No. 4, not moved. ]

Lord Mancroft

We have had an extensive debate, indeed, a rather more extensive discussion than I had thought. The debate has been remarkable for a number of reasons, not least because of the speech made by the noble Lord, Lord Brennan. The House will have listened to his remarks with great care. Having listened to his fascinating words, I wonder how on earth we could have got ourselves into a situation where we are discussing issues such as the Parliament Act on the very first day of our deliberations in Committee. Much as I appreciate the noble Lord's words—and he was absolutely right in everything he said—it can only be an indication of the muddle that possibly Parliament and certainly the Government have got into when an issue such as the Parliament Act is discussed on the very first day in Committee, before we have even considered the Bill in depth.

It would be so much better for both Houses and for all those outside in the country who are worrying about these issues if we were able to step back and think about them in the terms expressed by the noble Lord, Lord Alli, in what I thought was a most remarkable speech. It was an example to all. It is not easy to make speeches about unpopular issues. The noble Lord, Lord Alli, has done that with great courage and his speech served as a useful guide. Noble Lords should hear such speeches occasionally.

I was interested in what the right reverend Prelate the Bishop of Chester had to say, in particular his words about the need to improve our animal cruelty laws. Of course he was quite right to make the point; that is what we need to do. That is why we should not be dealing with a shambolic criminal Bill today when we could be spending the time in consideration of something like the Bill of the noble Lord, Lord Donoughue, which really would be of immense benefit to wild animal welfare in this country, a matter which the Government appear to regard as nothing of any significance. For those of us who do care about animals and are not interested in criminalising people, that is a useful piece of legislation. The time being spent by noble Lords on this Bill, both today and next week, could more usefully have been spent on seeking to put the noble Lord's Bill on the statute book.

A number of issues have been raised during the debate. The noble Lord, Lord Hoyle, is very worried about deer hunting, while the right reverend Prelate aired his concerns about hare coursing. Those are important details and we shall come to them in due course. However, the issue before us at this precise moment is the concept of registration, which forms the heart that was ripped out of the Bill last summer in the House of Commons. By putting the concept of registration back into the Bill—the simple concept that individuals or groups can register to hunt—we would introduce a strict regulatory framework. We do not need at this moment to discuss details such as animals, places and so forth; rather the issue of registration is a concept, a theory. The Chamber would then put forward the message that it is better to regulate than to ban, a point made by the noble Baroness, Lady Warnock. As the noble Lord, Lord Brennan, remarked, it is better to look for a sensible, middle route than to go to the extremes in these difficult arguments. I hope that noble Lords will agree with me.

7.5 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 261; Not-Contents, 49.

Division No. 2
Acton, L. Campbell of Alloway, L.
Allenby of Megiddo. V. Carlile of Berriew, L.
Alli, L. Carlisle of Bucklow, L.
Ampthill, L. Carnegy of Lour, B.
Armstrong of Ilminster, L. Carrington, L.
Arran, E. Carter, L.
Ashcroft, L. Cavendish of Furness, L.
Astor. V. Chan, L.
Astor of Hever, L. Chester, Bp.
Attlee, E. Chorley, L.
Baldwin of Bewdley, E. Clement-Jones, L.
Barnett, L. Cobbold, L.
Beaumont of Whitley, L. Cohen of Pimlico, B.
Belstead, L. Colville of Culross, V.
Best, L. Colwyn, L.
Biffen, L. Courtown, E.
Blackstone, B. Cox, B.
Blackwell, L. Craig of Radley, L.
Blaker, L. Crathorne, L.
Blatch, B. Crickhowell, L.
Bledisloe, V. Croham, L.
Borrie, L. Cumberlege, B.
Bowness, L. Dahrendorf, L.
Boyce, L. Darcy de Knayth, B.
Bragg, L. David, B.
Bramall, L. Davies of Coity, L.
Brennan, L. Dean of Thornton-le-Fylde, B.
Bridgeman, V Denham, L.
Brittan of Spennithorne, L. Desai, L.
Brooke of Alverthorpe, L. Dixon-Smith, L.
Brooke of Sutton Mandeville, L Donaldson of Lymington, L.
Brookeborough, V. Donoughue, L. [Teller]
Brookman, L. Dundee, E.
Brougham and Vaux, L. Eccles of Moulton, B.
Burnham, L. Eden of Winton, L.
Buscombe, B. Elis-Thomas, L.
Butler of Brockwell, L. Elton, L.
Byford, B. Erroll, E.
Caithness, E. Evans of Temple Guiting, L.
Falkland, V. Molyneaux of Killead, L.
Feldman, L. Monro of Langholm, L.
Fellowes, L. Monson, L.
Ferrers, E. Montrose. D.
Forsyth of Drumlean, L. Moran, L.
Fowler, L. Moser, L.
Fraser of Carmyllie, L. Mowbray and Stourton, L.
Freeman, L. Murton of Lindisfarne, L.
Freyberg, L. Naseby, L.
Gardner of Parkes, B. Newby, L.
Gavron, L. Newton of Braintree, L.
Geraint, L. Nickson, L.
Gilmour of Craigmillar, L. Northbourne, L.
Glentoran, L. Northbrook, L.
Golding, B. Northesk, E.
Goschen, V. Norton of Louth, L.
Gray of Contin, L. Oakeshott of Seagrove Bay, L.
Greengross, B. O'Cathain, B.
Greenway, L. Oliver of Aylmerton, L.
Grenfell, L. Onslow, E.
Habgood, L. Palmer, L.
Hanham, B. Palumbo, L.
Harris of High Cross, L. Park of Monmouth, B.
Hayhoe, L. Parkinson, L.
Hayman, B. Patten, L.
Henley, L. Pearson of Rannoch, L.
Heseltine, L. Peel, E.
Higgins, L. Peston, L.
Hodgson of Astley Abbotts, L. Peyton of Yeovil, L.
Hoffmann, L. Pilkington of Oxenford, L.
Hogg, B. Platt of Writtle, B.
Hogg of Cumbernauld, L. Plumb, L.
Hooson, L. Plummer of St. Marylebone, L.
Howe, E. Prys-Davies, L.
Howie of Troon, L. Puttnam, L.
Hunt of Wirral, L. Randall of St. Budeaux, L.
Hurd of Westwell, L. Rawlings, B.
Hussey of North Bradley, L. Rawlinson of Ewell, L.
Hylton, L. Rea, L.
Inge, L. Reay, L.
Irvine of Lairg, L. Redesdale, L.
James of Holland Park, B. Rees, L.
Jauncey of Tullichettle, L. Renton, L.
Jopling, L. Renton of Mount Harry, L.
Keith of Castleacre, L Richardson of Duntisbourne, L.
Kimball, L. Roberts of Conwy, L.
King of Bridgwater, L. Rogan, L.
Kingsland, L. Rooker, L.
Knight of Collingtree, B. Roper, L.
Laing of Dunphail, L Ryder of Wensum, L.
Lamont of Lerwick, L. Saatchi, L.
Lewis of Newnham, L. St John of Fawsley, L.
Linklater of Butterstone, B. Saltoun of Abernethy, Ly.
Lipsey, L. Sandberg, L.
Listowel, E. Sanderson of Bowden, L.
Liverpool, E. Sandwich, E.
Livsey of Talgarth, L. Scott of Foscote, L.
Lloyd of Berwick. L. Scott of Needham Market, B.
Lucas, L. Seccombe, B.
Luke, L. Selkirk of Douglas, L.
Lyell, L. Selsdon, L.
McColl of Dulwich, L. Sharman, L.
MacGregor of Pulham Market, Sharples, B.
L. Shaw of Northstead, L.
McIntosh of Hudnall, B. Sheppard of Didgemere, L.
Mackie of Benshie, L. Shrewsbury, E.
MacLaurin of Knebworth, L. Simon, V.
Mallalieu, B. Simon of Glaisdale, L.
Mancroft, L. [Teller] Skelmersdale, L.
Mar, C. Skidelsky. L.
Marlesford, L. Slim, V.
Masham of Ilton, B. Smith of Clifton, L.
Mayhew of Twysden, L. Stern, B.
Methuen, L. Stevens of Ludgate, L.
Miller of Chilthorne Domer, B. Stewartby, L.
Miller of Hendon, B. Stoddart of Swindon, L.
Strange, B. Vinson, L.
Swinfen, L. Vivian, L.
Taverne, L. Waddington, L.
Tebbit, L. Wade of Chorlton, L.
Temple-Morris. L. Wakeham, L.
Tenby, V. Wallace of Saltaire, L
Thatcher, B. Walpole, L.
Thomas of Gresford, L Warnock, B.
Thomas of Gwydir, L. Weatherill, L.
Thomas of Swynnerton, L. Wilcox, B.
Tombs, L. Wilkins, B.
Tordoff, L. Williams of Elvel, L.
Trefgarne, L. Williamson of Horton, L.
Trumpington, B. Willoughby de Broke, L.
Turner of Camden, B. Wilson of Tillyorn, L.
Ullswater, V. Winston, L.
Amos, B.(Lord President) Harris of Haringey, L.
Bach. L Harris of Richmond, B.
Berkeley. L. Haskel, L.
Billingham, B. Hattersley, L.
Brett, L. Hoyle, L.
Campbell-Savours, L. Hughes of Woodside, L.
Clark of Windermere, L. Jones, L.
Clarke of Hampstead, L Kirkhill, L.
Corbett of Castle Vale, L. Laird, L.
Craigavon, V. Lockwood, B
Davies of Oldham, L. Lofthouse of Pontefract, L.
Dholakia, L. McIntosh of Haringey, L.
Dixon, L. Morgan, L.
Dubs, L. Murray of Epping Forest, L.
Elder, L. Nicol, B.
Evans of Parkside, L. Pendry, L.
Faulkner of Worcester, L. Ramsay of Cartvale, B.
Fookes, B. Rennard L
Sheffield, Bp.
Gibson of Market Rasen, B. Sheldon L
Gilbert, L. Thornton, B.
Gould of Potternewton, B. Tope, L.
[Teller] Watson of Invergowrie, L.
Graham of Edmonton, L. Whitaker, B.
[Teller] Worcester, Bp.
Grocott, L. Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

7.20 p.m.

Clause 2 [Exempt hunting]:

The Deputy Chairman of Committees (Baroness Lockwood)

I should point out to the Committee that if Amendment No. 17 is agreed to, I cannot call Amendment No. 18 under the pre-emption rule.

Baroness Byford

moved Amendment No. 17: Page 1, line 8, leave out subsection (2). The noble Baroness said: These are important amendments which may take a little while to discuss— perhaps an hour—by which time the dinner debate will be totally out of line. Would it be possible, with the Committee's permission, to leave consideration of the amendments until after the dinner break?

Baroness Farrington of Ribbleton

The rules of the House state that we may break before 7.30 p.m. only when all noble Lords taking part in the debate are present. They are not here. Given that noble Lords have expressed concern about the amount of time available for the Bill, I am loath to allow an hour and 10 minutes for the dinner break business. It would be better to proceed with the debate on Amendment No. 17.

Baroness Byford

In that case, I am quite happy to proceed.

In moving Amendment No. 17, I shall also speak briefly to support Amendment No. 18. Amendment No. 17 would remove the Secretary of State's power to amend by order a class of exempt hunting. An order made under this clause would be subject to affirmative procedure of parliamentary approval—

The Countess of Mar

I am sorry to interrupt the noble Baroness, but there seem to be an awful lot of sub-committees going on in the House. May I ask the noble Baroness, Lady Farrington, to ensure that the noble Baroness, Lady Byford, can be heard?

Baroness Farrington of Ribbleton

I am grateful to the noble Countess. I am seeking not to appear too heavy-handed with the House, but I was conscious of the difficulty the noble Baroness had in being heard.

Baroness Byford

I presume the noble Baroness wishes me to continue, although I see her colleague, the noble Lord, Lord Sainsbury, in his place. I apologise to noble Lords if I was not heard—I normally have a loud voice, and will make sure that I am heard now.

The amendment would remove the Secretary of State's power to amend by order a class of exempt hunting. An order made under this clause could be subject to the affirmative procedure of parliamentary approval for delegated legislation. This, I believe, is a Henry VIII clause that allows the Secretary of State to change the very heart of the Bill which Parliament approves. That should not be acceptable, as it would allow a Secretary of State to expand or restrict the application of this Bill and could, in effect, render a parent Act a nonsense.

This is another probing amendment, designed to establish beyond any doubt that any change to Schedule 1 could take place only if both Houses of Parliament, not just the Commons, and independent of one another, approve this change.

As I have said, I support the amendment in the name of the noble Baroness, Lady Mallalieu, to which I will return later. I beg to move.

Baroness Mallalieu

Amendment No. 18 is really a tidying-up amendment, which would insert the words "add or" in the clause. It would enable the Secretary of State to add, as well as to vary, the classes of exempt hunting. This is proposed not for any draconian or sinister purposes, which seemed to be suggested with regard to my earlier amendment, but simply to bring this part of the Bill in line with the other parts of the Government's original Bill. By adding to the classes of exempt hunting, the Bill is made consistent with what the Government had set out earlier.

For example, Clause 17(5)(b) of the original Bill, which dealt with the determination by the registrar, stated that the registrar may, add to or vary the conditions specified in the application". Clause 19(4)(b), which dealt with determination by the tribunal in the Government's original Bill, stated that the tribunal may, add to or vary the conditions specified in the application". Clause 29(a), which dealt with the amendment of automatic conditions in the Government's original Bill, stated that the Secretary of State may "add a condition" to the group registration licence.

There seems no reason that I am able to see why the change has been made in this Bill. I would be grateful if the Minister could explain why those words are not used. It seems to me that by adding them, one gives scope for alterations which may become necessary later. I should have thought that, notwithstanding all that the Minister said earlier, it is surely desirable to give some flexibility within the system which would not require amendment either by subsequent order or, indeed, by subsequent legislation.

The amendments would increase the powers of the registrar. Given that the House has voted for registration, I should have thought that that was, in this context, desirable.

Lord Renton

The amendment moved by my noble friend Lady Byford raises a matter of parliamentary principle. It is suggested in Clause 2(2) that the Secretary of State may, by order—that means by secondary legislation—amend Schedule 1, which is fundamental and is primary legislation. The way in which it could be amended is something that we should avoid. For example, if merely foxhunting is to be dealt with in the primary legislation, the clause would enable other forms of hunting, such as stag hunting, to be dealt with as well. I really do not think that is the sort of thing we should delegate to the Secretary of State to enable him to deal with the matter by secondary legislation, so I support the amendment.

Lord Carlile of Berriew

I, too, support what has just been said and the objection in principle to the introduction of a Henry VIII clause which would give the Secretary of State power to determine what should be in the schedule, if that is what is meant by Clause 2(2). Will the Minister tell the House what really is meant by Clause 2(2)? It says: The Secretary of State may by order amend Schedule 1". That is reasonably clear. However, it then appears to limit the amendments the Secretary of State may make by providing the purpose, so as to vary a class of exempt hunting". Schedule 1 contains several classes of exempt hunting, each of which is given a title which presumably defines the class. For example, paragraph 6 is headed "Falconry". What can the Secretary of State do under Clause 2(2) to vary that class of falconry? Is it the Government's intention that the Secretary of State should have the power to remove that class from exempt hunting? If so, they have not provided for that to take place in Clause 2(2), because it does not allow the Secretary of State to remove a class, but only to vary the class. If they want to allow the Secretary of State to vary the classes of hunting by removing or adding, they should say so in the text of the Bill. It is a completely obscure provision.

What is meant by varying a class in relation to the example that I chose—falconry, in paragraph 6 of Schedule 1? Does varying falconry mean, for example, that the Secretary of State could remove paragraph 6(a)? I doubt whether that would be permitted under the provision in Clause 2(2). I cannot see what the Secretary of State can do under Clause 2(2). It looks to me like a piece of legislative nonsense that would be of benefit only to people such as myself and the other lawyers in the Chamber, who would welcome the opportunity to earn substantial brief fees from whoever cares to pay us under the cab-rank rule— which, as the Committee knows, we always follow.

Noble Lords


Lord Carlile of Berriew

I think I rather resent that titter from my left.

There is an important and serious point here. The legislation that we introduce must have a meaning that those who adjudge upon it can understand. This seems to me to have no useful meaning whatever.

7.30 p.m.

The Countess of Mar

In view of the speech just made by the noble Lord, Lord Carlile, I wonder where the Minister stands and where his integrity stands, given that he has said that he will not recommend to the Committee that an amendment is accepted.

Viscount Bledisloe

As another lawyer, I share the views expressed by the noble Lord, Lord Carlile, as to the extreme difficulty of knowing what subsection (2) means by, so as to vary a class". Would the provision entitle the Secretary of State to remove a class completely—to say that rat hunting was no longer exempt at all? Even if the provision does not allow the Secretary of State to do that, it allows him virtually to do that, because he could say that all he was doing was varying the class by saying that rat hunting was exempt, provided that it takes place between 2 a.m. and 4 a.m. on Christmas Day. That would considerably remove the exemption. It cannot be right that, whether directly or in that sort of indirect way, the Secretary of State has absolute power to take away exemptions that Parliament has given.

Lord Whitty

It might be helpful if I explained the point of the measure, which is to ensure that we do not have to return to primary legislation if, in practice, the clauses prove difficult to interpret. We could vary exemptions, but not delete them. That would be subject to the affirmative procedure anyway, but an over-interpretation of "vary" so as to completely undermine the exemption would not be allowable under the clause.

The second amendment suggests that we could add to the exemptions. Again, that would be a significant variation of primary legislation. It is better that we are able to vary but not to add to or subtract from the classes of exemption. It may be helpful if I spell out the provisions in writing between now and Report, so that the kind of situations that might arise are clearer. If the noble Baronesses, Lady Byford and Lady Mallalieu, were prepared not to press their amendments, we might have a debate on the basis of that information at a later stage. There could be qualifications to variation rather than deletion of variation.

Lord Carlile of Berriew

On the assumption that the proposal is a considered piece of legislation, can the Minister give us some examples of the situations in which the Government envisage that the power contained in the subsection might be needed? That would help the rest of us who do not understand the meaning of the clause.

Lord Whitty

That is what I am suggesting that I write down, because I cannot immediately envisage, in relation to falconry, quite how we would do it. Those who have more knowledge of falconry than I do may be able to say that there could be a variation either to the welfare of the birds or for conservation purposes, and that we might want to alter the terms of the exemption but not to delete or add to it. That limited power for the Secretary of State—in practice, for the tribunal and the registrar—ought to be allowable in the Bill.

I shall do as the noble Lord, Lord Carlile, suggests, and write a letter to those Members of the Committee who are interested in the area.

Baroness Farrington of Ribbleton

In the light of an earlier misunderstanding, it might be helpful if I remind both noble Baronesses that, if Amendment No. 17 is called and agreed to, Amendment No. 18 cannot be called.

Lord Mancroft

Can the Minister think of any other examples in legislation where this type of order and language have been used? He may not be able to do that at this precise moment, but could he at some point give us some examples? It seems most extraordinary. I cannot envisage how one could vary the classes, although I can see how one can add to or subtract from them. The language seems most extraordinary. If the noble Baronesses withdraw their amendments, it might be helpful to know other examples of this type of order in legislation.

Lord Whitty

I am happy to do that, but I believe that the noble Lord will find that there are a lot of examples of power for the Secretary of State to vary particular provisions of schedules. I shall try to find some.

Baroness Byford

I am grateful to the noble Lords who have spoken to the amendment. My understanding is that the provision is to vary a class.

There is a whole range of issues on which the Minister has not answered satisfactorily, but he offered to go away and think about the matter. I should like clarification from him before I decide what to do, because if he is only going to go away and write to me about it, and not have this debated or come back with some form of government words, I am not content. However, I am quite willing to give the Minister a second chance at greater clarification, because from his words I did not quite understand his commitment to us. I need to know that before I decide what to do.

Lord Whitty

I was not offering that the Government would introduce alternative forms of words. I suggested that the Chamber might be better informed in making up its mind on a free vote on this amendment if I provided a letter spelling out the circumstances in which a variation might be appropriate. In case the noble Baroness thought that it had changed my stance on these matters, I was not suggesting that we would introduce an alternative form of words to the amendment; I was simply offering information before the Chamber made a decision.

Earl Ferrers

If the Minister does not understand the wording and finds out what it means, it is possible that he may find that the words are not quite as good as they should be.

Lord Whitty

I do not want to get ahead of myself; let us see what decision the Chamber would take if I gave it a few more examples of where variation would be a desirable power.

Lord Pearson of Rannoch

Will the letter go to all Members of the Committee who have taken an interest in the debate? It would be helpful if we knew where we stood on the matter.

Lord Whitty

Since the noble Lord requests a letter, I shall certainly ensure that he gets one. However, the normal procedure is to write to those who have participated in the debate and leave a copy in the Library.

The Earl of Onslow

Can the Minister clear my mind? If he is persuaded by his officials that the wording is not clear, does he intend to stick with the original wording irrespective of what the advice is? As my noble friend Lord Ferrers said, the noble Lord should not knowingly allow words into a Bill which he does not understand, or which he has reason to believe might be unclear. I should have thought that he had a duty to ensure that the wording of the Bill was absolutely clear.

Lord Whitty

I understand what the wording means. It means that the Secretary of State can vary the description of the exemption but not delete or add to the class of exemptions provided for in the Bill. I suggested to the Committee that we needed further clarification on one or more of those exemptions. The noble Lord, Lord Carlile, mentioned falconry of which, regrettably, I have little knowledge. He asked in what circumstances the Secretary of State might wish to vary falconry without changing the basic fact that falconry is exempt.

Baroness Byford

I listened to the Minister but he did not give me hope. He gave me hope originally but then said that he would not do what I had understood from his words that he would. No message has come from his officials so perhaps the Government themselves, including the Bill team, have no idea of the answer to the question. In those circumstances, I wish to test the opinion of the Committee.

The Deputy Chairman of Committees

The Question is that Amendment No. 17 be agreed to. As many as are of that opinion will say, "Content", to the contrary, "Not Content". The Contents have it.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I remind the noble Baroness, Lady Mallalieu, that I cannot call her Amendment No. 18 under the pre-emption rule.

[Amendment No. 18 not moved.]

Baroness Farrington of Ribbleton

I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee begins again not before 8.40 p.m.

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

House resumed.

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