HL Deb 28 October 2004 vol 665 cc1404-35

11.32 a.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 again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.


Schedule 1 [Exempt Hunting]:

Earl Peel moved Amendment No. 60: Page 6, line 36, leave out "two" and insert "four

The noble Earl said: The purpose of this string of amendments tabled in my name is to try to establish the degree of impracticality that at any rate appears to exist in Schedule 1. As I have already said, regardless of the principle of whether hunting with hounds should continue, the Bill appears to pose some genuine difficulties to many involved in countryside management, including shooting. Here I declare an interest as someone who not only participates in the sport, but also owns and manages a shoot.

At this early stage I should like to remind the Committee that the Minister, the right honourable Alun Michael, has made a clear commitment that it is not the Government's intention to impose restrictions on the sports of shooting and fishing. Indeed, the noble Lord, Lord Whitty, confirmed that in reply to a question of mine and my noble friend Lord Denham at Second Reading. Given the position, I hope that the Minister will be genuinely forthcoming in his response to my amendment by giving the Committee a clear indication of what the implications would be if Schedule 1 is enacted without amendment.

I shall speak first to Amendments Nos. 60, 61 and 62, and then deal with Amendments Nos. 71 to 75. Amendment Nos. 60 to 62 deal with the provision for what is described as "exempt hunting". As the Bill stands, anyone involved in activities described as the "stalking" and "flushing out" of a wild mammal would be committing an offence, as it would be deemed to be hunting, unless he has no more than two dogs. I would suggest that this is likely to cause great difficulties, in particular for those involved in shooting.

Gamekeepers, beaters and those responsible for picking up and gathering in the game as quickly as possible often have more than two dogs. Schedule 1 as it stands would seriously compromise their activities. Let us suppose that there were 20 beaters for a shoot, each of whom had one dog. That would be 20 dogs, which is more than two. Would that constitute "hunting" under the terms of the Bill?

Furthermore—this is a very important question which was alluded to by my noble friend Lord Eden of Winton on Tuesday when we were discussing whether Clause 2 should stand part—there seems to be another extraordinary anomaly in the stalking and flushing out provisions of Schedule 1 in that if an individual did raise a mammal in those circumstances, such as a hare, fox or deer, according to paragraph 1(7)(a) it would have to be, shot dead by a competent person". So we find ourselves in the extraordinary situation where if someone out on a shoot as a beater, picker-up or gamekeeper flushed out a mammal that was not allowed to be hunted, he would have to carry a gun and shoot it whether he wanted to or not. That strikes me as very odd. I thought that, on a shooting day one at least had the choice whether to shoot the mammal, but according to Schedule 1 one would have to do so. Aside from anything else, that would be highly dangerous. If a deer got up and one had only a shotgun, would one really have to shoot it with that gun? I cannot believe that that is right. But if it is the case, then clearly the Government will have to reconsider the whole paragraph.

Amendments Nos. 60 to 62 attempt to increase the number of dogs to something more realistic. However, I am bound to say that this is not the way to deal with the problem. The real way to address it is on the basis of purpose and intention. I hope that the Government can approach this in a more pragmatic and helpful way.

I turn to Amendments Nos. 71 to 74. Here I simply employ the same argument against why exempt hunting should be restricted to two dogs when dealing with rescuing a wild mammal under paragraph 8. However, strictly speaking Amendment No. 75 should have been grouped with the next set of amendments, and I appreciate that this is a little complicated. That amendment would remove the restriction of not being allowed to use a dog underground to control a mammal which was protected from hunting for the purposes of rescue.

That last point is rather strange. Paragraph 8(3) states that the second condition to make hunting exempt for the purposes of rescue is that, the hunting is undertaken for the purpose of relieving the wild mammal's suffering". The obvious case here is where a vixen with cubs underground has been shot. Surely, under such circumstances, it would be appropriate, indeed essential, that a dog be used underground to dispose of the orphaned cubs.

Let me quote Professor MacDonald, who was commissioned by the Burns inquiry to look at population management and control of quarry species. He stated: Even if a rifle is used to kill adult foxes at the earth, there is a case to be made on welfare grounds that terriers should be used subsequently to ensure that cubs are not left without parental care". My noble friend Lord Soulsby has tabled an amendment which has similar intentions and I look forward with great interest to what my noble friend, who has far more experience in these matters than I do, has to say.

It is perhaps worth noting also that the specific provision for dealing with orphan cubs using a dog below ground is covered in the Protection of Wild Mammals (Scotland) Act 2002. I hope that the Government will appreciate the real need to rethink this clause and acknowledge the overriding need for a more acceptable and pragmatic solution.

Amendments Nos. 78, 79 and 80 involve the same arguments as to why the number of dogs used for exempt hunting activities should be restricted to two. In this case I refer to paragraph 9, which covers research and observation. I beg to move.

Lady Saltoun of Abernethy

Before the Minister replies, will he bear in mind that some people may not be shooters but merely dog owners exercising their dogs, and that they may have more than two dogs? Those dogs may spot some wild mammal and go after it.

Lord Livsey of Talgarth

I make a couple of points in support of the amendments. There is a great deal of confusion in the Bill as it stands and I am very pleased that the noble Earl, Lord Peel, has brought the amendments forward.

There is no doubt, certainly in my experience, that shooting, if well organised, involves a degree of control which ensures that the whole exercise is conducted properly and that injured animals, for example, are taken care of. Amendments Nos. 60 to 80, excluding Amendments Nos. 63 and 64, ensure, for example, that many of the day-to-day management actions taken by gamekeepers for the owners or the family members of owners are covered.

In particular, on a shoot—and I have not been shooting for at least a decade—it is normal to have at least half-a-dozen people shooting, and sometimes many more. It is also traditional to bring your dog with you, although you can keep it in the car to ensure that not too many dogs are used. But frequently, if a mammal or a bird is injured, certainly more than two dogs are involved in searching for that quarry and bringing it back. It is a complex situation.

The amendments are common sense. They give flexibility in shooting to ensure that there is not as much suffering as would otherwise be the case if shot birds or other mammals could not be found. As to terrier work and the issue of cubs underground, we have to ask ourselves whether or not we want the cubs to starve to death. It is a simple question. These are constructive amendments which would ensure that such matters are conducted in a civilised way.

Baroness Byford

I support my noble friend's sensible amendments. They highlight the practical difficulties that we have in debating the Bill, which we know the Minister certainly does not wish to alter very much.

I hope that the Minister will reply in relation to the desirability of what my noble friend is seeking to achieve in regard to the practicalities of larger shoots and the way in which they are organised. If another place decides to take a contrary view and does not accept the amended Bill that we are likely to send back to it—especially in regard to registration—can the Minister say whether these kinds of amendments could not be included because of the use of the Parliament Act?

This highlights the nonsense with which we have been faced over the past three days. We are trying to improve the Bill and to come to some kind of compromise; as yet, there has been no compromise at all. I hope that the Minister will respond to both questions.

11.45 a.m.

Lord Hoyle

Before my noble friend replies, I must take issue as to whether there has been compromise or an improvement of the Bill. It appears to me that many things have been added to the original Bill which will not be acceptable to the House of Commons.

I believe that if more than two dogs are used, more rather than less cruelty could arise. Whether or not this is a compromise, there is a danger that the real intent is to bring into the Bill the Scottish situation, where packs of dogs chase an animal into a wood or elsewhere, and then the animal is shot. This would ensure that hunting continues and I wonder whether that is the intent behind these amendments.

Lord Swinfen

Is the use of two dogs confined to one individual person, or are two dogs to be used among a group of people? I ask the question because the last time I went shooting there were some 20 of us and at least 20 dogs were out. Some people had one dog and those who did not have a dog were made up with those who had two dogs with them. Is it to be two dogs per individual or two dogs per shoot?

Lord Mancroft

I support my noble friend's amendments. Can the noble Lord, Lord Hoyle, explain why using three or four dogs would be crueller than using two? I cannot see that using two dogs to pick up game is cruel, nor can I see that using four dogs is. I simply do not understand what the noble Lord means.

Lord Hoyle

The question is why two dogs are not sufficient. I think that the use of more dogs could cause unnecessary suffering. That is the point I am making. Amendment No. 71 seeks to make it an unlimited number of dogs.

Lord Mancroft

That is most helpful. However, in answer to his point, if two dogs were used on a big shoot all day, they would be two very, very tired dogs. You need to use a number of dogs to cover the ground. There is a limit to the amount of ground two poor dogs by themselves can cover. Whether there are two, three, four or five dogs, the cruelty issue does not arise; it is a complete irrelevance.

One of the issues on which my noble friend has put his finger is that there has never been an explanation of why these numbers were suddenly plucked out of the air. I understand that the purpose of the Bill is to ban hunting which takes place with a pack. Fine. But, putting that aside—let us assume that that is what the Bill seeks to do—these amendments have nothing to do with that. Schedule 1, "Exempt Hunting", on which these amendments are focused, relates to other activities. I suppose that the Bill has been drafted and drawn up in such a way as to prevent loopholes which would allow people to carry out the activity of illegal hunting while pretending that they were shooting, flushing, stalking and so on.

My noble friend has pointed out that, in the attempt to focus narrowly this part of the schedule to ensure that there are no loopholes, the Bill makes virtually impossible the activities that the Government have committed not to injure, as well as related activities. The number of dogs is completely irrelevant to hunting issues in shooting, so the provision is meaningless.

My noble friend also drew the Committee's attention to paragraph 1(7)(a) on page 7 of the Bill, and the issue of having to shoot a mammal once one has flushed it. The mammal has to be, shot dead by a competent person", but there is no definition of a "competent person". One would hope that it would be shot dead, not shot wounded, but apparently it might be wrong if one cannot actually shoot it dead.

My noble friend has drawn attention to the point about carrying the appropriate firearm. Three different sorts of firearm would be required, depending on whether the mammal was a hare, deer or fox. That would be particularly relevant if the purpose for which one was going out was to shoot birds, and one's dog then put up a hare, deer or fox. Especially with a deer or a fox, it is most unlikely that anyone in the area is carrying the appropriate firearm—so it is virtually impossible to do.

There is another factor, which is the time of year at which the shoot is happening. One may well be out at the time of year when the deer that one puts up is out of season, as defined in the deer Acts. One then has a wonderful choice under this legislation: one either breaks the law under the Hunting Bill or under the deer Acts. One cannot obey both laws.

These are not issues of principle; this is just sloppy, second-rate legislation. The reason why we have a political process whereby Bills go through a Committee and Report stage in both Houses is to clean such things up. Unfortunately, the Government have chosen to take the Bill through another place with the tightest guillotine of which I have ever heard and restricted debate on it last year in your Lordships' House—we never got this far. Now that we are having a full Committee stage, and we are getting towards the end of it, we are discovering parts of the Bill which, whether one agrees with the principle of the Bill or not, are so badly written and drawn up that they probably do not achieve their object and certainly cause collateral harm elsewhere.

Now, because we are apparently in Parliament Act territory, it will be very difficult to correct these mistakes—which occur in all legislation, which is why we are a revising Chamber. The problem therefore is, as a result of where the Government have taken us on this matter, if the other place rejects what we send back and if we find ourselves back with what is colloquially known as "the Banks Bill", it will end up on the statute book in a state which no Bill should ever be in. My noble friend does the Committee a service by drawing its attention in these amendments to that situation.

Lord Palmer

I must just correct the noble Lord, Lord Hoyle, who said that in Scotland, dogs—or whatever they are—chase wild mammals into the woods. That is against the law in Scotland. Hounds are employed to chase a fox out of the wood, where it is, one hopes, despatched by marksmen at the end of the wood. That is a very important point to put on record.

Lord Monro of Langholm

My noble friend Lord Mancroft put the case clearly of there being anomalies in the Bill. In the beginning of the speech made by my noble friend Lord Peel, he said that the provisions were another addition to the anti-shooting policy of this Government. When the Minister responds, will he put on record exactly the Government's policy on shooting? Anyone can see when reading the Bill that, if all these anomalies remain in the Bill, it makes normal shooting virtually impossible. Besides that, we have endless difficulties with the issue of firearms. The police are encouraged to be as difficult as possible, and younger shooters are handicapped because they are not allowed to go out alone. In every way, the Government are on quite infirm ground in their opposition to shooting. We anticipate that they will be against angling, too, when that matter rises in some year to come.

Will the Minister reply to the debate and remove the anomalies? It seems incredible that they are there, with all the consultations that this Government have had, year in and year out, when members of BASC, the Game Conservancy Trust or the Countryside Alliance could have told any Minister that they had got this hopelessly wrong. Let us have a real, honest reply from the Minister today—he should say that he realises that the drafting and the policy behind it is wrong, and that he has to put it right.

Lord Willoughby de Broke

I support my noble friend's amendments. I wish to take a little further a point made by my noble friend Lord Mancroft about paragraph 1(7)(a) of Schedule 1, which says that reasonable steps should be taken, for the purpose of ensuring that as soon as possible after being found or flushed out the wild mammal is shot dead by a competent person". This all comes back to shooting, of course. I do not shoot very often, except on my own farm, as I am a very poor shot. But on several shoots—and on my own farm—we do not shoot ground game. That is one of the rules given at the beginning of a shoot: do not shoot hares or rabbits. How does that instruction fit in with paragraph 1(7)(a)? Is that instruction inciting people to break the instructions elsewhere in the schedule? The provision says that if wild mammals such as a hare or deer are flushed out, one is not allowed to shoot it—but it says in that paragraph that one must shoot it. Is there not some anomaly there? Perhaps the Minister could deal with that when he comes to reply.

Lord Swinfen

Would my noble friend agree with me that such an instruction is often given for reasons of safety of the beaters? Therefore, to comply with the law might put some beaters in danger on some ground where it is very difficult sometimes to see the beaters coming towards the guns.

Lord Whitty

In response to the noble Lord, Lord Monro, and to the first point that the noble Earl made, this is not a Bill to restrict shooting, nor have the Government any intention of introducing a Bill to do so. This is a Bill to restrict hunting with dogs. The import of all these amendments would be to increase the number of dogs involved in hunting activities. It is therefore unlikely that those who wanted either the original government Bill or the Bill which was originally before this Chamber would be amenable to wholesale increases in the number of dogs allowed under these provisions.

It might have been possible, had there been a general atmosphere of negotiation and compromise, for some of these practical things to be talked through. However, regrettably, we are not in that situation. I have said this to the Chamber too many times, but I shall say it again—that it only adds to the difficulty of the likely response from Members in another place that we have already not simply reverted to the so-called "Alun Michael Bill", because we have already deleted the prohibitions on stag hunting and hare coursing, extended beyond reason the utility test and diluted the suffering test. Now, if the amendments are passed, we shall increase the number of dogs allowed in these exempt activities. That does not represent a package in the spirit of compromise.

Therefore, while I note some of the arguments, I do not believe that it is sensible to increase the number of dogs provided for in the exemptions. Of course, under the Bill that is now before the Committee, which includes registration, there would be certain circumstances in which a larger number of dogs would go through the registration process. But that is a different issue—these are exempt activities.

As to whether the provision limits the number of dogs per person or number per operation, it refers to the number of dogs involved in chasing a mammal. If it is four people with two dogs, one person with two dogs or 20 people with two dogs, that is fine. If there are more than two dogs but they are chasing several mammals, that may also be fine, depending on the arithmetic. The question is whether more than two dogs are being set on to one animal. That is the test—not the number of people compared to the number of dogs.


Earl Peel

I refer to a situation on a shoot day where there are, say, 30 dogs. A mammal gets off to the right, pursued by two dogs; a mammal gets off to the middle pursued by four; and a mammal gets off to the left pursued by one. In the first case an offence is not committed, in the second case it is and in the third case it is. Who will make the assessment? Who will do the counting? How will prosecutions take place?

Lord Whitty

The answer to that is that those who wish to obey the law will not have broken it. Regrettably, there is always the theme running through these debates that those who are described as law-abiding people will wish to break the law. If people observe the restrictions, as they are supposed to observe the voluntary restrictions that exist at the moment, they will not break the law.

Lord Crickhowell

I am grateful to the noble Lord for giving way. The noble Lord suggested to the Committee that the reason we cannot make sense of a Bill that is at present nonsense is that there has not been a readiness to compromise. Actually, we are in this position because of a pre-determined insistence that the Parliament Act will be pursued. We shall finish with a totally unworkable Act. I have one specific question that I should like the Minister to answer. The police will have great difficulty even in dealing with hunting, but in that case they can identify people with horses. Are the police now expected to attend every shoot in the country to ensure that the law is enforced when anyone goes out shooting?

Lord Whitty

As in all instances the police act on information received or perceived breaches of the law. Clearly, no more than they follow people around who might commit some other criminal offence, will they on the off chance follow people around the countryside to see whether they have more than two dogs. However, were a complaint to be made, the police would investigate it, as would be their duty if this Bill is passed.

The offence of having more than two dogs involved in these activities—as my noble friend Lord Hoyle pointed out—results from the new law in Scotland whereby, in effect, there is not a limit on dogs and therefore by default a pack of hounds develops and we are back into a situation where something like the hunting which was intended to be restricted or made illegal takes place. It was for those reasons that these restrictions on the number of dogs involved in these activities were put in place.

Other issues arise under the amendments apart from the limit on numbers. Amendment No. 64 would amend the gamekeeper provision in paragraph 2 of Schedule 1 in relation to terriers, which are exempt for the prevention of damage to game birds as the Bill stands. The amendment would extend the measure to livestock.

Lord Mancroft

I am grateful to the noble Lord for giving way. I think that he has inadvertently slipped into the next group of amendments.

Lord Whitty

I believe that Amendment No. 64 is included in the relevant grouping.

Earl Peel

The grouping has been changed.

Lord Whitty

I am sadly misled. Amendment No. 64 must have been included in the relevant grouping at some point but it no longer is, in which case I shall reserve my remarks on it until I receive clarification myself.

Earl Peel

It is evident that the Minister listened closely to what I had to say.

Lord Whitty

As ever. Two other points were raised. The noble Lady, Lady Saltoun of Abernethy, mentioned someone taking a dog for a walk that happened to chase an animal. It has been clear throughout that the issue of hunting is dealt with in regard to intent. In no way would a little old lady walking on the common whose animals happened to run after a stray fox or anything else be subject to this law. In principle the same applies to the issue raised, I believe, by the noble Lord, Lord Willoughby de Broke, about people who inadvertently flush out ground game while trying to shoot birds.

Lord Mancroft

I am most grateful to the noble Lord for giving way. Like the Minister, I, too, was listening very carefully. He said in answer to the question raised by the noble Lady, Lady Saltoun, that the offence was committed by a person with intent. Can he show me where in the Bill the issue of intent arises? It appears to me that a person commits an offence if he hunts a wild mammal, not if he intends to do so. However, if he does not intend to do so, but the dog is doing the hunting, clearly he has not committed an offence, has he? I cannot see intent in that.

Lord Whitty

Throughout these debates—I am sure that the noble Lord will have studied the proceedings—the issue of intent is implied, as it is in other legislation. That applies here, as the courts would take it to apply in a whole range of legislative situations. Neither the person taking their dog for a walk nor the flushing out of animals which were not the object of the hunt would be construed as intent, which is the point that I am making, and therefore would not fall foul of these restrictions.

Lord Livsey of Talgarth

I should like to try to assist the Minister because we could go on for a very long time challenging, perhaps unnecessarily, some of the points that have been made. Is it not the case that the way in which the measure has been drafted impinges upon shooting; in fact it was referred to as collateral damage to shooting? Surely the simple way to tackle this is to define more closely on Report what is meant by hunting in this context, perhaps relating it to a pack or something of that kind, leaving the issue of shooting to continue in its traditional way, which certainly is not what I would describe as a method of hunting—it is a case of dogs assisting a shoot. I should have thought that some definition on Report might save a lot of time and effort and speeches which perhaps have been provoked by some rather sloppy legislation.

Lord Whitty

No doubt the noble Lord can concoct all kinds of things for Report but I do not think it is necessary. Time and again the Government have said that the measure is not intended to restrict lawful shooting. Indeed, the Title of the Bill states that it is to: Make provision about hunting wild mammals with dogs". It is not intended to restrict lawful shooting. However, a problem arises when packs of dogs chase an animal which is then shot, and that situation turns in effect into a hunt. I refer in that regard to the point made about the Scottish legislation by my noble friend Lord Hoyle. That is why we have to place restrictions on these exemptions.

Both for practical reasons and because it would be seen as yet another step way beyond the Alun Michael Bill, I advise the Committee not to pursue these amendments. However, it is, as ever, a free vote.

Earl Peel

Before the noble Lord sits down, will he be kind enough to answer the questions that I posed to him under Amendment No. 75, I think it was, which is concerned with the use of a dog underground for the killing of cubs from a vixen that may have been shot?

Lord Whitty

As the noble Earl himself said, this issue arises substantively in a later group of amendments, most of which are in the name of the noble Lord, Lord Soulsby. If the noble Earl does not mind, I shall respond to the matter at that point.

Lord Willoughby de Broke

Before the Minister sits down, he was in the process of answering the query raised by my noble friend and myself about whether someone who was instructed not to shoot ground game, hares or deer at a shoot would be acting consistently with Schedule 1. The Minister was answering that question when he was diverted. Will he reply to that question, at least?

Lord Whitty

The noble Lord is right. I was diverted but I thought that I had returned to the matter. The issue of intent is relevant here. Clearly, where the instruction not to shoot ground game is obeyed, but inadvertently ground game are flushed out, the person involved would not be under the relevant obligation because there is no intent. There is no intent to hunt the ground game and therefore the requirement to shoot as rapidly as possible would not apply to the game that were not the quarry.

Lord Mayhew of Twysden

Will the Minister reflect—if not today, then before Report—on the way in which he responded to the point raised by my noble friend Lord Peel about the policing of the methods? He will remember the entirely realistic scenario that my noble friend painted of dogs pursuing mammals in the course of a shoot. Will the Minister reflect on the field day of opportunity that the schedule would give for private prosecutions brought by "antis" who did not pay much attention to the fact that the Government did not wish it to operate against the interests of shooting?

Lord Whitty

I shall reflect on it, but I do not see that it makes any difference, as it is not the intention to provide means of restricting lawful shooting, whether by private prosecution or not. However, I shall consider the point further, and we may return to it on Report.

Viscount Ullswater

I want to put a practical point to the Minister. If the law comes in for a total ban, the shooting of hares will be an exempt hunting operation. There is an intent to shoot the hares; they are often driven in. In my part of the world—Norfolk—we often have large hare shoots in February, where perhaps hundreds of hares are killed on one day on one farm because of the number that need to be controlled. Therefore, hare shooting is now classified as exempt hunting, as it is: Stalking a wild mammal, or flushing it out of cover". There may not be cover on the rather bare fields in February, but I guess that it is still included. When that takes place, the beaters usually have dogs, very much under control and probably on leads, which would satisfy paragraph 1(7)(b), but they would commit an offence if there were more than two dogs in the line of beaters.

The anomaly in the Bill is that, once the whistle blows for the end of the drive, paragraph 1(5) seemingly contains no restriction on the number of dogs that may be used for the retrieval of hares. It seems extraordinary that, for driving the hares, only two dogs could be available on that field or in that area, but, when the exempt hunting finishes, any number of dogs are available to undertake retrieval of hares.

Lord Whitty

Without wishing to aggravate the conflict more than I need do, the hunting of hares was also banned in the Bill that came from the House of Commons, so the situation that the noble Viscount described would not have been legal under it. Hypothetically, I think that he is right—unless I am informed otherwise, which I am not—but if one has restricted the number of dogs for the chase it is unlikely that a large number will materialise at the point when retrieval is required. I suppose that it is theoretically possible, but the whole point is to restrict hunting with hounds, so it is at that point that the restriction clicks in.

Earl Peel

I want to refer to the suggestion by the noble Lord, Lord Hoyle, that the amendment was some form of hidden agenda to try to push the English hunting situation into one similar to Scotland. I tried to make it clear when I moved the amendment that I spoke from a shooting perspective. I assure him that I have no intention whatever of trying to introduce any hidden agenda on hunting. All that I am trying to do is explain to the Committee that Schedule 1 is complete and utter nonsense.

I cannot believe that the Minister thinks that the answers that he attempted to give us made any real practical sense whatever. It is a shambles. Since I have been in this House, I have always been told that the essence of good law is law that is enforceable. As my noble and learned friend Lord Mayhew said, the provisions will lead to private prosecutions. They will be much more likely than anything done by the police because, frankly, it will be impractical for the police to take action if offences occur.

12.15 p.m.

I like to think that my dogs are fairly well under control but, from time to time, they will pursue a hare—they will pursue a mammal protected from hunting under the Bill. I am sorry, but that is a fact of life. The thought that I could be criminalised for such an action makes me very angry. I suggest that the Government think twice before introducing this utter nonsense. As my noble friend Lord Mancroft said, the Bill has never been properly scrutinised. This is the first opportunity that Parliament has had to do so, and we have driven a coach and horses through it, to use the Minister's expression.

I hope, perhaps beyond hope, that the Minister and his right honourable friend Alun Michael will seriously reconsider this nonsense, and that we can at least have a workable and enforceable Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 61 and 62 not moved.]

Earl Peel moved Amendment No. 63: Page 7, line 13, after "to" insert "—

  1. (a) "

The noble Earl said: Amendments Nos. 63 and 64 deal with the exemption under the Bill for a gamekeeper to use a dog below ground for flushing out a mammal, most likely a fox, for the purpose of preventing or reducing serious damage to game birds or wild birds … which a person is keeping or preserving for the purpose of their being shot". I am bound to say that I welcome that important concession to gamekeepers, but I simply cannot see the logic in disallowing such an activity for the protection of livestock or birds that will not be shot.

As every countryman and farmer knows, foxes are major predators of poultry and livestock. On Tuesday, I quoted to the Committee the National Farmers Union of Wales on the fact that lamb predation by foxes increased up to six times when hunting was prohibited during the foot and mouth epidemic. If hunting were to be prohibited, the requirement to deal with a fox underground would become even more essential. It may be worth reminding the Committee that failure to control pests can lead to a notice being served by Defra under Sections 98 and 99 of the Agriculture Act 1947. Amendment No. 63 deals specifically with the question of livestock.

Amendment No. 64 deals with a further anomaly by which birds that may be shot are given the extra protection of the use of a dog below ground to control foxes, but a bird that does not fall within that category fails to qualify for such protection. Again, that baffles me completely. Predation by foxes and stoats on ground-nesting birds can be phenomenal. In the uplands, for example, there are now virtually no ground-nesting birds on any areas not managed for game shooting. A recent survey conducted by Andy Tharme, on behalf of the RSPB and the Game Conservancy Trust, of which I have the honour to be president, found that moorland managed for grouse shooting had up to five times more wader birds—I am referring to golden plover, curlew and the green plover—than those that were not managed in a similar way.

It seems bizarre that the protection of those species should be subordinate to game birds. I suggest that that requires careful reconsideration. I beg to move.

Baroness Mallalieu

One of the main services that my local hunt on Exmoor provides to farmers has nothing to do with people on horses or people having pleasure. Every morning at dawn during the lambing season, at the request of the farmer the huntsman goes with a small number of hounds to lambing fields where damage has been caused and lambs killed. He tracks the fox that is responsible back to its earth, where it is dispatched with the use of terriers. That is a practical and essential service in almost every sheep area in this country. It is not what people think of as the job of a huntsman, but it is perhaps one of his most important tasks. That essential service will not be possible as the Bill is presently drafted. It is a total nonsense and another illustration of how the lack of any proper scrutiny of the Bill has led to glaring omissions in the drafting.

Lord Livsey of Talgarth

I spoke previously about the situation regarding the problems faced by monoculture in woodland in Wales. It is common practice to organise fox shoots with a number of dogs and often the foxes go to ground. The exclusion of the ability of terriers to go down and dispatch the foxes is a serious hole in this legislation and will cause exceptional problems for the control of foxes in the lambing season, as the noble Baroness, Lady Mallalieu, has stated.

Lord Whitty

This exemption on terrier work was inserted in another place on Report as an exemption for gamekeepers to provide for some use of terrier work for the protection of game birds and to allow a single dog to be used below ground for that purpose. The two amendments in the group would greatly extend that exemption.

I understand the noble Earl's point relating to birds other than game birds, but it is a significant extension. The exemption relating to livestock is a huge exemption. Presumably one could argue that allowing terrier work on any moorland that contained sheep, however sparsely inhabited, would be in connection with the protection of that livestock. That is a wide exemption. Noble Lords will understand that terrier work gives rise to some of the greatest animal welfare concerns and some of the cruellest practices. It is, therefore the intention of the House of Commons in putting the exemption in such terms to allow it only in limited circumstances. Both amendments substantially extend those limited circumstances beyond the intent of the Bill.

Baroness Mallalieu

I am sorry to interrupt the Minister. Can he tell us the justification for providing an exemption for gamekeepers but not for shepherds?

Lord Whitty

Our argument has been about using hounds for chasing foxes. That is what we are trying to ban or restrict, subject to a registration system. We are not trying to prevent shooting and, therefore, we do not wish to make a gamekeeper's life more difficult. That is why the exemption was given. Any wider exemption would take us into the wider field of hunting with hounds. I know that my noble friend does not accept that basic premise, but, nevertheless, the logic of the basic premise still applies. We are dealing with hunting with hounds, not with shooting. That is why the exemption is so limited.

Earl Peel

I am not suggesting for one moment that we put a hound underground. We are talking about putting a terrier underground. The terrier would bolt the fox and the fox would then be shot.

Lord Whitty

I accept that qualification in a sense, but we are not distinguishing this matter by breed of dog. It is the intention of this Bill to ban or restrict hunting with dogs in all respects. There is a distinction between trying to restrict that activity and trying to restrict an activity which is in pursuit of game shooting.

Lord Denham

Does the noble Lord realise that foxes kill lambs? Is a lamb less important than a game bird?

Lord Whitty

The Bill is about hunting with dogs. Can I get it into people's heads that the distinction here is the activity, not between a lamb and a bird? We are talking about restricting hunting with dogs in various ways. We do not want any inadvertent effect on other country sports or activities. That is the only reason that the exemption is being given. Otherwise, the purpose of the Bill is to limit the hunting of mammals with hounds—with dogs. The noble Lord may not like it. Clearly, a large number of Members of this House do not like it, but it is a logical position to say that exemptions which prevent collateral damage to other activities should be allowed but exemptions which allow a significant extension of hunting with hounds should not be.

Baroness Byford

I know that the Minister is becoming very frustrated, but at the end of the day, if he does not accept the amendments, which he should at least consider, the scenario mentioned by the noble Baroness, Lady Mallalieu, cannot be resolved. How will it be dealt with? Animal welfare will definitely suffer as a result. It is up to the Government to explain how we can overcome those difficult circumstances where there needs to be some form of control. Yet we are presented with a Bill which limits people's ability to control foxes where it is necessary, and in the most humane way. I do not understand the logic and, to be honest, the Minister has not given us an answer.

Lord Whitty

The noble Baroness disagrees with me. I accept that. A large proportion of this House, or, at least, those noble Lords who are here today and have cast their votes, disagree with me. But we are dealing with the activity of hunting with hounds. We do not accept that hunting with hounds is the most effective or the most humane way of dealing with foxes. Indeed the vast majority of the control of foxes is not through hunting with dogs. Therefore, I do not accept that we are greatly increasing the vulnerability of livestock, of birds or of anything by having the restrictions. Even if we were, why would we extend an exemption which is intended to avoid damage to shooting in a way that greatly undermines the central purpose of the Bill? From my point of view, it would not be logical to accept these amendments.

Earl Ferrers

As the noble Lord has said constantly, the Bill is against hunting with dogs. He has repeated that almost like a metronome. But does he not realise that, as a Minister in charge of a Bill that the Government have introduced, he must take into account the effect that his Bill will have on other things? The noble Baroness, Lady Mallaieu, has given a cast-iron case concerning certain activities that take place now which will no longer happen as a result of the Bill. It is not good enough for the noble Lord to say, "Well, that's too bad, but the Bill is just against hunting with dogs". My point is that the Bill affects a range of other things and the noble Lord should recognise that.

12.30 p.m.

Lord Whitty

The only reason I repeat things, and I accept that I have repeated things rather frequently in this Committee, is because it often seems that other noble Lords have not got the point the first time round, or even the second, the third and the fourth time round. Clearly, we do not want inadvertently to affect other activities if there is not a way of avoiding it. This exemption is precisely for that purpose; that is, to avoid damage to game shooting when it is not the intent of the Bill to deal with that issue. There are other issues where there will be collateral effects, but, for the most part, they can be dealt with in other ways without reverting to a further extension or allowance of hunting with dogs.

Lord Eden of Winton

This is the first time round. This stage of the Bill is the first time that a Chamber in Parliament has had the opportunity seriously to consider the words in the Bill. Those words were contained in the original Banks Bill. Therefore, surely, since this is the first time round, the Minister will recognise that there is to be a second time round; namely, Report. Is it not normal for the Minister in charge of a Bill, when it has been made manifestly clear during an earlier stage of proceedings that what is contained in the Bill will perpetrate a lot of nonsenses, absurdities and anomalies, to go away and think about these matters and come back on Report with improved wording?

The Duke of Montrose

I am trying to follow this debate. When the noble Baroness, Lady Mallalieu, spoke about huntsmen going to the lambing fields following a report of foxes worrying the lambs, did the Minister have in mind the huntsmen going with hounds to the lambing fields or did he see it as the huntsmen going with terriers? Representatives of one of the bodies which briefed us told us that half of the foxes killed by hunts are killed at the request of farmers; in other words, they are bolted from an earth and shot rather than chased across country. Has the Minister distinguished those two elements?

Lord Whitty

I am not entirely sure where the noble Duke gets his statistics from, but if he is referring to half the number of foxes which are killed by hunting with hounds, that is a small proportion of the total number of foxes. However, in answer to the point of the noble Lord, Lord Eden, yes, it is the duty of the Minister to consider absurdities that have been pointed out in the legislation and indeed I shall consider a number of points that have been made in this and the previous debate, but I am not convinced that the exemptions and the limitations on exemptions which are presented in the Bill are either absurd or ineffective. There may be some queries about the implications of some of them, but a reasonable balance was struck between the need to exempt certain activities so as not to cause collateral damage, or to do something which is not the intent of the Bill, and the need to put a limit on that exemption. Noble Lords may not feel that the balance has been struck in the right place, but there can be no argument that a balance would have to be struck if the basic logic of the Bill, whether it is a registration Bill or a banning Bill, were accepted. I appreciate that the noble Earl does not want either, in reality, but a balance has been struck.

Lord Livsey of Talgarth

I can see clearly what the Minister is arguing, but the problem is there is not a balance. The legislation refers to serious damage to game birds or wild birds. That is associated with the management of the countryside. We are talking about pests. Those pests are shot and they cannot be shot without the assistance of a dog. Surely it will be possible, when the Bill comes back on Report, to distinguish between those two factions.

Lord Whitty

That is possible, but the amendments would not precisely do that. They raise the limit on the exemption by broadening out the activities and increasing the number of dogs which could be used. They both would create much wider exemptions than the balance of opinion and approach in another place would allow. They do not strike a sensible balance between the two requirements.

Earl Peel

When we discussed my first group of amendments, I was aware that we had opened the door into Alice's Wonderland; I am now firmly convinced that we have entered Alice's Wonderland. I am incredulous at the Minister's inability to give logistical, sensible replies to the questions that have been raised. He constantly said that my amendments would undermine the central purpose of the Bill, which is hunting with hounds. I am talking about putting a terrier underground for the additional protection of livestock and birds that are not used for shooting. It has nothing to do with hunting with hounds.

The Minister said that Members of the Committee were becoming a little frustrated. I can certainly concur with that, but they are nothing like as frustrated as those people in the countryside will be when they have to live with the idiocies that the Bill will produce. We shall have to come back to the amendments on Report. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 64 not moved.]

Earl Peel moved Amendment No. 65: Page 8, line 10, at end insert— "Mice The hunting of mice is exempt if it takes place on land—

  1. (a) which belongs to the hunter, or
  2. (b) which he has been given permission to use for the purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs."

The noble Earl said: Here we go again. This time, I want to speak to Amendments Nos. 65 to 67. In Schedule 1, the hunting of rats and rabbits is exempt. The purpose of these three amendments is to try to establish from the Minister why that should be the case. As my noble friend Lord Mancroft has said on several occasions—indeed, as others have said, too—surely, the one single objective we should try to achieve when dealing with animal welfare issues is consistency.

Why, therefore, should a rabbit be treated differently from a hare, or a mouse—any rodent, for that matter—from a rat? What is the logic in that? From a practical perspective, is a dog expected to be able to distinguish the difference between a hare and a rabbit, or is a terrier expected to be able to differentiate between a rat and a mouse?

I noted what the Minister said about intent, but, having read Schedule I carefully, I am not convinced. Only the other day, my four dogs chased a mouse in the garage. The mouse escaped, but I believe that under this Bill I would have been committing an offence—unless of course I was prepared to argue that the mouse in question was likely to cause serious damage; or that I was obtaining meat to be used for human consumption—I am not normally in the habit of eating mice; or that I was participating in a field trial with my four dogs and a mouse in the garage. It conjures up a nice idea.

However, the situation gets worse. Assuming that I was prepared to argue that the mouse was causing damage for whatever reason—and I am perfectly aware that mice have to be controlled—I believe I would still be committing an offence unless I resorted to Schedule 1, paragraph 5(a) and shot the mouse in the garage. I would then be up against the magistrates or my wife—and I have to say that given the circumstances I would probably choose the magistrate. Therefore, I simply say to the Minister that if rats are exempt under the Bill, I strongly suggest that mice, voles and other rodents should also be excluded.

Amendments Nos. 66 and 67 deal with weasels and stoats. I find it extraordinary that under the Bill both those species are protected from being controlled by dogs. Both are prodigious killers of wild birds and game birds and they have to be controlled. In defence of the stoat, I am bound to say that I find it one of the most fascinating mammals that we have in this country. To watch a stoat perform its tricks as it mesmerises a rabbit before it kills it is one of the most extraordinary things in nature. But, that apart, as I said, they are prodigious killers and must be controlled.

I have already mentioned the Andy Tharme report, which showed that there are up to five times more waders on moors managed for grouse than on other moorland. That is largely because of the predator control activities carried out by the gamekeepers. Research by Sunderland University shows the devastating effects that stoats have had on the golden plover, which is another Biodiversity Action Plan species. From my own experience, I know just what damage stoats can do. Trapping and shooting are of course essential ways of controlling stoats and weasels but, interestingly enough, a recent survey of the Moorland branch of the National Gamekeepers Association found that approximately 25 per cent of stoats were killed through the use of dogs.

Given the physiology of both these species, I cannot believe that there can be any justification for treating them any differently from rats or rabbits. It is simply illogical. Indeed, like rats, they rarely run more than a few yards before the dogs catch them and so they are not hunted in the traditional sense. Given the nature of the upland terrain, shooting is often not a practical option.

Once again, returning to the commitment given by the Minister, Alun Michael, and the noble Lord, Lord Whitty, that shooting would not be compromised by the Bill, I urge the Minister to reconsider what is, in effect, a very small item but, none the less, a very important one.

It is equally important that we look at this matter not only from a shooting perspective but that we consider the effects of predation on all species of birds—particularly those classified under the Biodiversity Action Plan. Predation has a severe effect on these birds. Stoats play their part, and catching stoats with dogs is one important way of controlling their population. I beg to move.

Lord Monson

I hope that the noble Earl will push Amendment No. 65 to a Division—if not today, then at a later stage. Assuming that he wins the Division and that the House of Commons then insists on formally banning the hunting of mice with dogs, while permitting the hunting of rats with dogs, the national press, which until now has paid far too little attention to your Lordships' thorough and well informed deliberations, will at last have to sit up and take notice. Meanwhile, the international media—in the United States, on the Continent of Europe and elsewhere—will have an absolute field day.

12.45 p.m.

Lord Willoughby de Broke

I support my noble friend's amendment but wish to go a little wider. I raised a point at Second Reading. It may not have been the right moment for the Minister to answer it then, but perhaps he could give it some attention now or even on Report.

Under Schedule 1, the hunting of rabbits and rats is exempt. According to the Government's website, the reason is that rabbits are a serious pest in some parts of the country and hunting with dogs is a "reasonably humane" way of controlling rabbits. It says substantially the same thing about rats, mentioning that they are a pest.

Can the Minister or any of those who wish to ban hunting explain why rabbits are a serious pest and it is therefore reasonably humane to control them by hunting with dogs and why foxes are a serious pest in some parts of the country but it is not reasonably humane to control them with dogs? I should simply like an explanation, which we have not yet received, of the rationale behind this whole Bill. It has been mentioned that one cannot eat a fox but one can eat a rabbit, but, after all, one cannot eat a rat, unless some Members of the Committee think that ratatouille has something to do with rats.

My noble friend's amendment, about which I think he is serious, points to what he calls the Alice-in-Wonderland wording of Schedule 1. The schedule is deeply flawed, and I hope that the Minister will come back to some of the points and not just brush them aside at a later stage.

I should very much like to hear why one cannot substitute foxes for rabbits under exempt hunting if they are a serious pest, as has been generally agreed, even by the Minister. If the Government agree that foxes are a serious pest in some parts of the country, why is it reasonably humane to hunt rabbits with dogs but not foxes?

Earl Ferrers

I find that one's imagination goes into overdrive in trying to consider how the noble Lord, Lord Whitty, can possibly not accept the amendment of my noble friend Lord Peel. It is absurd that one cannot hunt mice, stoats or weasels. As the noble Lord is bound to accept that, I wonder whether he would also care to consider exempting mink. After all, as we have explained, mink do the most terrible damage and now the hunting of them will not be allowed. Yesterday I asked the noble Lord how he proposed that they should be controlled. He did not answer. Indeed, his noble friend Lady Farrington stood up and suggested that we move on to the next business, which was not a very good way of getting the noble Lord out of a hole. The noble Baroness shakes her head but she jolly well did do that. I was there and I heard it. The noble Lord did not answer but it is his job to answer these points.

The fact is that it seems curious to exempt stoats, weasels and mice. I can only say to my noble friend Lord Peel that shooting a mouse is nothing. The anti-mink people suggested on their website that I should be hanged, but that is far worse than shooting a stupid mouse.

The noble Lord, Lord Whitty, must realise that the Bill is a total absurdity. Does he not wish that the Bill had been allowed a proper Committee and Report stage in its original form, when all these matters could have been discussed and the Bill improved instead of the Government having drawn stumps, as they did?

Lord Renton

Although I have lived for only 96 years, it was not until I saw the Marshalled List of amendments today that I realised that mice were ever hunted. I have lived in town and country and have always been anxious to get rid of mice, but the only way of getting rid of them was to get a cat to chase them or to snare or trap them.

I greatly sympathise with my noble friend Lord Peel because he has had to tackle this remarkable schedule to the Bill and try to make it logically complete. If I may say so, his effort has been very successful. But I hope that I am not being tactless if I say that I think it was a slight excess of zeal to include the hunting of mice in any legal form.

Lord Swinfen

In his reply, can the Minister enlighten me on one point? The Bill says that the hunting of rats is exempt. Does that include the North American tree rat, commonly known as the grey squirrel?

Lord Whitty

I have yet to see a dog catch a grey squirrel.

Noble Lords


Lord Whitty

I mean as part of an organised hunt. That is the point. The noble Earl is drawing an Alice-in-Wonderland and Through-the-Looking-Glass picture and is setting up an Aunt Sally that does not exist. The noble Lord, Lord Renton, rightly pointed out that there is no issue of hunting mice with packs, except in the noble Earl's garage. I suspect that even then there was no intent on the owner to organise a pack. Therefore, a dog chasing a squirrel, a dog chasing a mouse, or even a dog chasing a stoat is not part of the problem that the Bill is attempting to address. We are trying to limit packs that become organised and to limit the amount of hunting with dogs in that sense.

I am sure the noble Earl regards this as a logical extension. To throw up the issue of mice in this context is an attempt at satire by him—a rather heavy-handed one. No packs of hounds are organised to chase mice, therefore, we are not dealing with that issue. At the margin, there could be for some of the other animals.

My expert advice on biology and legal matters is that a grey squirrel is not a rat; it is a squirrel. If necessary, I can elaborate on that in writing. I shall not go down the road of the travesty that the noble Earl, Lord Ferrers, portrays of how the Bill was dealt with in terms of time last time round. We have been over that ground already. He is wrong and I am right, but there we go.

Earl Ferrers

How can the noble Lord say that I am wrong and he is right when the Government decided to prevent proper parliamentary discussion on the Bill, truncated the whole matter and, in its place, produced a Bill enacted by the Parliament Act?

Lord Whitty

No one has used the Parliament Act. We are trying to avoid the deadlock in which the Parliament Act may become relevant, but so far in this Committee stage we are failing lamentably to do that. The last time around it was not the Government who finished the business. However, let us not go over all that ground again.

If necessary I shall reply in detail in writing to the noble Earl, Lord Ferrers, on mink. The point on mink is that only a very small proportion of mink is accounted for through hunting. There was some dispute with my noble friend Lady Golding and Lord Hoyle about how much, but the estimate is that between 2.2 and 7.7 per cent of mink are actually accounted for through hunting. Trapping is recognised as the main means of controlling mink and is widely used by gamekeepers; there is also some shooting of mink. When there are many mink around, packs of good dogs catch at most one mink per hunt. Therefore, the vast majority of mink escape, so it is not a very efficient way of controlling mink. Other methods are not usually efficient, but they are more efficient than hunting.

Earl Ferrers

Perhaps the noble Lord will agree that even if it is not efficient, it is very good exercise and stops people becoming obese—the Government do not like people becoming obese.

Lord Whitty

I am not sure that the Government's policy on obesity is most efficiently dealt with by people chasing mink. I suspect there are rather more effective and indeed, I would venture, more pleasurable ways of getting thinner. We are straying rather wide of the amendment before the Committee.

This is a bit of an Aunt Sally. I shall reflect on the important points made in the debate, as I have said, but making these proposals, especially if they were put into the Bill and returned to the Commons, is simply another way of your Lordships aggravating the situation and probably ensuring that compromise is even further away.

Lord Willoughby de Broke

Would the Minister answer the question I put to him: if rabbits are a serious pest in some parts of the country, and hunting with dogs is a reasonably humane way of controlling them, why is the same not applicable to foxes, which in some parts are a serious pest?

Lord Whitty

I thought that this amendment dealt with mice, stoats and weasels and we are now on to foxes and rabbits. We could pursue this for some time, but the exemption for rabbits is to recognise the reality of the countryside. There are ways in which rabbits are caught and we want to give certain exemptions for the way in which rabbiting and ratting is actually carried out in the countryside. It is probably the only bit of hunting in which I have engaged. This is not a personal plea, but it recognises the reality that hunting rabbits is somewhat different, provided it is subject to reasonable limitations, from hunting foxes with organised packs of hounds. If your Lordships cannot see that, we have very little common understanding of the problem.

Lord Monson

Does the Minister agree that Schedule 1 of the Bill formally permits the hunting of rats with hounds? To my knowledge it has not happened so far, but it could happen in the future if no alternative quarry is available. Why does the schedule specifically permit the hunting of rats with hounds?

Lord Whitty

I thought I had just answered that.

Earl Peel

I suppose there is a great danger that I will go down in history as the Peer who introduced hunting of mice into your Lordships House—a risk I have to take. It is not an Aunt Sally, as the Minister suggested. It is a very serious point. The noble Lord made an interesting observation. He said that there are no packs of hounds organised to hunt mice, therefore the issue is irrelevant. But, there are no packs of gun dogs bred to hunt hares and yet under the Bill, if more than two dogs chase a hare, an offence will be committed. I am sorry, but the noble Lord is being totally illogical in the response that he gave me.

The Minister referred again to the issue of intent. Clearly, this is at the heart of the whole matter. We shall have to study with great intent—if I may use that word—whether the Bill really deals with the issue. I do not believe that it does. My noble friend Lord Mancroft raised exactly the same point. If we can introduce sensible amendments that deal with the issue of intent, I believe that there may be a way forward in dealing with these ridiculous anomalies. If we cannot, then quite frankly, we are left in an awkward and ridiculous situation.

It is all very well the Minister hiding behind the fact that this is a Bill about hunting with hounds, but he is the Minister responsible for the countryside in your Lordships' House and he will have to live with the consequences of the Bill. I urge the Committee to think seriously. These are not Aunt Sallys; these are not irrelevant issues introduced to try to amuse people; they are serious points. I hope that the Minister will take them as such. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 66 and 67 not moved.]

Lord Mancroft moved Amendment No. 68: Page 9, line 6, after "be" insert "diseased or

The noble Lord said: In moving Amendment No. 68, I shall speak also to Amendments Nos. 70 and 77. I believe that my noble friend Lord Soulsby will speak to the other two amendments in the group. Under Schedule 1, relating to exemptions, paragraph 8 states: the hunter reasonably believes that the wild mammal is or may be injured". There are further provisions in the paragraph, under the heading, "Rescue of wild mammal". Presumably, therefore, it is recognised by the Government that a reasonable reason for exemption is that one of the relevant wild mammals is injured.

1 p.m.

Amendments Nos. 68, 70 and 77 would extend such an exemption for an injured mammal to an animal that has a disease. There are a number of reasons for that. We are aware—we have talked about the matter before in the Chamber—that within the fox population there has been an enormous increase in sarcoptic mange over the past 15 years. Like an injured animal, a diseased animal will often go to ground. So there is a need to deal with the issue.

If the Government accept that an injured animal needs to be put out of its misery, so indeed should a diseased animal. We now know, for example—and we talked about this yesterday—that because of the League Against Cruel Sports' incredibly irresponsible management of its deer sanctuary on Exmoor, we have a very significant reservoir of bovine tuberculosis infection in those deer in the west country. The deer are riddled with worm and are very weak, according to the vets' reports of the British Deer Society. The noble Lords' vets from Defra took part in meetings to discuss the issue. So there is a very serious problem with disease there.

We also have a problem with foxes having a disease. That needs to be dealt with. There are a number of hare diseases, most of which I cannot pronounce. I am not sure whether I would be able to recognise them. However, it is clear that those who know more about this matter than I believe that it is very important when these hares get diseases, which could have a very damaging effect on levels of population within localities, those responsible for their management have the ability to deal with them. So, it is very simple: the Government accept that injury to a wild mammal is a good reason for an exemption and all I suggest is that the illness of a wild mammal is an equally good reason for an exemption. I beg to move.

Lord Whitty

The best way for me to intervene in this debate is to describe what happened in the House of Commons. The reference to "diseased" was included in the original Bill presented to the House of Commons. It was then extensively discussed, both in Committee and on Report. It was altered not in Committee but on Report.

The argument was that on the one hand it could lead to abuse, in that it is pretty evident if an animal is injured, but it is not necessarily so evident whether an animal is diseased; and, on the other hand, using dogs to chase animals suspected of carrying an infectious disease would raise the risk of spreading the disease. On those two grounds your Lordships will make your judgment on whether they are right or wrong. The House of Commons has deleted the reference to disease at this point.

If the noble Lord, Lord Soulsby, wishes to speak I shall respond to him.

Lord Soulsby of Swaffham Prior

As my noble friend Lord Mancroft has indicated, I should like to speak to Amendments Nos. 69 and 76. I hope these will not be contentious and will pluck at the heartstrings of noble Lords who listen. Both amendments concern the issue of orphaned cubs. They seek to ensure the use of dogs to dispatch orphaned cubs under the provisions of exempt hunting. The Bill as drafted would not allow the use of dogs to dispatch such orphaned cubs, and the need for this provision has been recognised by several bodies. My noble friend Lord Peel mentioned the research findings of Professor Macdonald of Oxford. He found that, even if a rifle is used to kill adult foxes at the earth, there is a case to be made on welfare grounds that terriers should be used subsequently to ensure that cubs are not left without parental care". The Burns committee, of which I should declare I was a member, also suggested that there should be an exception from the general offence for orphaned cubs underground. The report stated: It would be necessary to consider the form of exemptions that should apply in particular areas, especially sheep-rearing upland areas, and for particular cases … [for example] dealing with orphaned foxes underground". The Bill takes no account of that recommendation. One asks: how can it be more humane to let cubs starve to death rather than be dispatched quickly?

Hunting usually takes place between mid August and early March, thus avoiding the time when vixens are nursing dependent young. But shooting foxes is indiscriminate and has no close season. It is therefore likely that in the event of a hunting ban, increased shooting of foxes will result in an increase in the number of orphaned cubs. It is essential that the Bill makes provision for the dispatch of such orphaned cubs and I believe the only method is the use of terriers underground.

The legislature in Scotland has dealt with this issue. Specific provision for dealing with orphaned cubs using a dog below ground is made in the Protection of Wild Mammals (Scotland) Act 2002. That provision was supported by the Scottish Society for the Prevention of Cruelty to Animals (SSPCA). In evidence to the Scottish Parliament's Rural Development Committee, James Morris of the SSPCA said that, if terriers were sent underground only to kill cubs there would be no cruelty to the cubs and the terriers would not suffer any damage". The Scottish SPCA says that it, is opposed to the use of terriers underground. However, the Society accepts that, under current conditions, dependent cubs are at risk when a vixen is shot in springtime. The prospect of cubs starving to death below ground is unacceptable in welfare terms. For this reason, and in the absence of a close season, the Society [the SSPCA] was reluctantly obliged to concede the use of terriers to despatch cubs". The two amendments seek to ensure the humane dispatch of orphaned cubs in the event of their losing their vixen.

Baroness Mallalieu

If the Government cannot accept the amendment in the name of the noble Lord, Lord Soulsby, then I, for one, despair of the so-called animal lovers who have framed this legislation.

Lord Whitty

The noble Lord, Lord Soulsby, has put forward arguments, but the situation is that the House of Commons has discussed the issue. It was discussed in Committee. Its decision was based on the fact that you could always claim there were cubs down a particular fox hole, and that that would be open to abuse. Your Lordships will take a view on the balance of those arguments and so will the House of Commons were you to send the legislation back to them. I am not giving a government opinion on this. As I say, it is entirely a free vote.

Earl Peel

I am surprised by what the Minister has said. Bills come to this House, having been scrutinised fully in the other place. That has not happened with this Bill. We have debates. We put forward our cases, like my noble friend has just done in a very succinct and powerful way. Under normal circumstances, the Minister concerned says that he will consider the matter and perhaps return to it at the next stage. Given the very powerful arguments that my noble friend has put, surely the Minister can at least do that.

Lord Whitty

I am afraid that once again I have to go back to the start of the Bill. We are in rather a unique situation on the Bill, which is subject to a free vote. The Government's position is primarily to guide the House on why conclusions were reached in another place and whether amendments passed in this House would increase or decrease the chances of agreement between the two Houses. At the moment, given earlier amendments to the Bill, the chances of such agreement are limited and the addition of another one may well aggravate rather than improve the situation.

I am not giving a government view on the merits or otherwise of the noble Lord's amendments, except where I think they go far too far beyond the intent of the Bill, which I appreciate many noble Lords do not support, nor have I given a government view on other amendments. The duty of the Minister here is to present the reality of the position between the two Houses. So I do not have an opinion either way on the noble Lord's amendments.

Baroness Mallalieu

I am sorry to interrupt the Minister; I am grateful to him for giving way. Do the Government not see part of their duty in dealing with a Bill that is introduced in government time and presented as a government Bill to ensure that bad legislation does not reach the statute book?

Viscount Ullswater

I agree with the noble Baroness, Lady Mallalieu, that the Bill was introduced as an animal welfare Bill. At this stage, the Minister is demonstrating beyond all measure that his hands are completely tied. If he gives way one iota to the suggestion of my noble friend Lord Eden that he should take matters away, look at them and perhaps come forward with a different amendment, it means that the Parliament Act cannot be used. I believe that the noble Lord is demonstrating that he has no latitude; he cannot make any form of amendment, whether it is a government amendment, or accept a Back-Bench amendment. From the noble Lord's answers today, we can see that the Bill is against hunters, not hunting.

Baroness Byford

I slightly disagree with my noble friend—the Bill is nothing to do with animal welfare. I thought that we had established that right at the beginning. Tony Banks said, and I quoted him on Second Reading, that the Bill is of political importance. He said that it is nothing to do with animal welfare; that is not important.

Members of the Committee should not slide into thinking that that is what the Bill is supposed to be about, because clearly it is not. The noble Baroness, Lady Mallalieu, is quite right to say that she despairs. Most of us in this Chamber do despair. Because we are so restricted, there are practical things which need addressing, yet every day in Committee we have been thwarted. I have great regard for the Minister, but, as he has clearly demonstrated, he has taken his bat and ball and gone home, saying, "I can't do anything else. It's up to those at the other end". What is Parliament coming to, and where is democracy going? I think it is a disgrace.

Lord Whitty

I would love to take my bat and ball and go home, and I suspect that some other noble Lords may feel the same.

I have to query what the noble Baroness has just said. Which Bill are we talking about here? The Committee has amended a Bill; the noble Baroness and others now purport to be in favour of a system of registration. Is she saying that that is not a system for animal welfare? Is it therefore all a charade simply to embarrass the Government and the House of Commons?

Baroness Byford

No, indeed. I think the Minister is being a little mischievous. I beg his pardon if I did not make it completely clear that the Bill that was originally presented to us on Tuesday to start in Committee was one that the Government had adapted, forced through by Tony Banks, to bring in a ban on hunting.

Lord Whitty

I appreciate the noble Baroness's clarification. Nevertheless, I think that people outside would at times wonder about the position of some who have spoken in support of amendments to the Bill and their motivation.

Let me reply to the noble Baroness's other point and that of the noble Viscount. My hands are not tied—this is a free vote. The Government have no power over their Back Benchers on this vote and no desire to try to Whip the House into taking an opinion one way or the other. The House can take a vote on this and put it back to the House of Commons. As I have said, I have one vote, like everybody else. I have decided not to use my vote on this occasion or on any occasion in Committee.

1.15 p.m.

Lord Eden of Winton

I am much obliged to the Minister. On that very point, I have a question, which I accept is hypothetical. Let us say that a private Member brings forward a Bill in the other place which imposes serious restrictions on shooting or fishing or tries to ban them altogether and that it is carried through that House on a free vote. When it then comes to this House, would the Minister say, notwithstanding the Government's declared policy not to interfere with shooting or fishing, that because it was carried on a free vote in the other place, he can do absolutely nothing about it, and it must go back inviolate because it was a free vote and that is democracy? Is that what he is saying?

Lord Whitty

No, I am saying almost the opposite. If it were a Private Member's Bill, the Government would have an opinion on it; if it were a Bill which the Government had not initiated or given commitments to see through, then they would have a view on it.

In this case, in two election manifestos, the Government have said that they will allow a free vote of the House of Commons to determine this issue. The people who are thwarting democracy are those such as the noble Lord who make a travesty of the whole case by saying that the blocking or delaying of the Bill by the House of Lords is somehow a manifestation of democracy. It is precisely the reverse.

Lord Eden of Winton

It was a free vote in Parliament, not the House of Commons, and this House is a House of Parliament.

Lord Whitty

Yes, and it is therefore subject to the rules which govern relationships between the two Houses. That is what we are engaged in. There is nothing I can do to stop this House putting amendments back to the House of Commons. Some of the amendments I have warned against. If this amendment stood on its own, I think that the House of Commons should seriously consider it. But it does not stand on its own—it is grouped with amendments which, as the noble Earl has largely agreed, drive a coach and horses through the Bill which the House of Commons presented and through the original Bill that my colleague Alun Michael presented to the House of Commons.

We are not talking in a vacuum. I am neutral at this Dispatch Box. Were I to cast my vote, in different circumstances I might have supported the amendment of the noble Lord, Lord Soulsby, but we are not in those circumstances. This House has already rejected the opinion several times expressed by the House of Commons and is therefore contributing to and precipitating a deadlock situation in which the issue of the Parliament Act may well arise. I have not done that—not even Ministers have done that. It is because of the decisions of this House in the face of the clearly expressed will of the democratic Chamber. That is the challenge to democracy, not the way expressed by the noble Lord, Lord Eden.

Lord Crickhowell

Does the Minister not understand the consequences of what he is saying? He is saying, effectively, that because of what happened at the other end, the Government now wash their hands of the matter and refuse to consider the impossible effect of the Bill—the fact that it is unworkable. But he is the Minister with responsibility for agriculture and the environment. When he finds that the Bill is unworkable and the consequences are disastrous, he will have no alternative but to accept the responsibility for this. Can I have his assurance that, bearing in mind that this House has established that the Bill is total nonsense, he is already instructing his officials to prepare the hunting legislation (amendment) Bill that will undoubtedly be required very soon?

Lord Whitty

That is a matter of opinion, and it is an opinion that I know the noble Lord genuinely holds. It is not my view; it is not the view of the Government; and, most importantly of all, it is not the view of the overwhelming majority of the House of Commons. That is the situation that this House must take into account.

By all means pass this amendment or any other amendment, I am just telling you what I think the reception in the House of Commons will be if we pile amendment on amendment. Regrettably, at this stage, when we could have had a sensible conversation about practical difficulties with Schedule 1—to an extent I agree with the noble Earl, Lord Peel, that we should discuss such issues—your Lordships have instead already wrecked the Bill and will send back to the House of Commons something that is worse, in its terms, then what it has already overwhelmingly rejected. That is the real position and that is why we are discussing perfectly sensible amendments in an atmosphere and form that is unlikely to be acceptable to the House of Commons.

Viscount Ullswater

Surely the Minister must realise that this is a series of amendments, each one of which can be rejected by the House of Commons, or some of them can be accepted by the House of Commons to make Schedule 1 work properly. He is saying that there is absolutely no chance of making any amendment to the Bill, and it seems that the House of Lords has wasted its time in any sense. I believe that he is saying that, even if we were to make a small amendment to Schedule 1 to make it more workable, we would be wasting our time.

Lord Whitty

I said exactly the opposite. I said that I may regret the time taken, but I do not think that it is wasted if the penny eventually drops. The Government and I want to avoid deadlock; this House professes to want to avoid deadlock, but instead you are sending back to the House of Commons a Bill that will provoke deadlock and therefore avoid the sensible discussion of sensible amendments, such as that of the noble Lord, Lord Soulsby. That is the situation in which we find ourselves. We could prolong this discussion, but I think that the noble Lord, Lord Soulsby, will want to decide whether to press the amendment to a vote today or to return to the matter, so that we can deal with the amendment in the normal way. We have strayed somewhat from the subject matter.

Baroness Farrington of Ribbleton

We ought to speak to the amendment. I fear that we are entering a whole new area of the philosophy behind the Bill and the Second Reading points about its nature. I am trying to be fair; I am not trying to curtail debate; but there are two moods coming from Members of this House. Some of them want to know what the noble Lord, Lord Soulsby, intends to do.

Baroness Byford

The difficulty is that the Minister did not answer the questions raised. No, he did not. The exchanges have developed from that, because the Minister's hands are, to a certain extent, tied so he does not want to get into full explanations of the amendments before us.

Lord Jopling

The Minister cannot have it both ways. On this and similar amendments, he has more or less said to us, as my noble friend Lord Ullswater said, that we are wasting our time. He must accept that that is the impression that he is giving us. But last night, when we were discussing fell packs, he made the point that if we want our voice to be heard in another place, we must write provisions in to the Bill here. He cannot have it both ways by saying, "Oh no, this will not be acceptable in another place", and therefore, more or less, "Forget it", yet at the same time saying that if we want to propose sensible amendments now, on Report, or on Third Reading, we must include them in the Bill. He is trying to have it both ways, which I find quite intolerable.

Lord Whitty

The noble Lord makes quite a clever point, but that is not what I said. I am not objecting to this House passing the amendment of the noble Lord, Lord Soulsby. My response to it was to explain why the House of Commons had come to an alternative conclusion. The Government as such do not have a view on the amendment, and I have expressed some personal sympathy with it, were we in different circumstances. But if we think that there is still, at this late stage, some chance of compromise, by all means let us put this amendment to the House of Commons. That is what I had hoped, because the noble Lord's amendment and that of my noble friend Lord Campbell-Savours, who is not in his place today, addressed the Bill in the form that it came from the House of Commons and therefore had a higher chance of serious consideration by the House of Commons. But the background is as I described.

I am not saying to your Lordships' Committee, "Do not pass this amendment", I am saying, "What you have done previously makes it less likely that this amendment will be accepted".

Lord Soulsby of Swaffham Prior

I had not intended to divide the House, although having listened to the debate and having been to some extent encouraged by the Minister, I should like to test the opinion of the House as regards my amendment.

Lord Mancroft

In replying to both amendments, the Minister did not answer the points or make them clear at all. He insinuated that you could not identify these problems, but they have been identified for years. So the answer is not there. The amendment of my noble friend Lord Soulsby has made even clearer what the Minister implied, which is that there are problems with the Bill. It could be corrected. But the obsessive desire to destroy and the hatred of hunting of the other place is so much greater than its desire to promote animal welfare that it would rather leave cubs orphaned and sick animals out in the countryside than risk that one person could possibly ever go hunting once. That is what is so appalling. We may need to return to the amendment, but for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Soulsby of Swaffham Prior moved Amendment No. 69: Page 9, line 6, after "be" insert "orphaned or

The noble Lord said: I repeat that I would like to test the opinion of the House.

On Question, amendment agreed to.

[Amendments Nos. 70 to 75 not moved.]

Lord Soulsby of Swaffham Prior moved Amendment No. 76: Page 9, line 12, at end insert "except to despatch orphaned cubs

On Question, amendment agreed to.

[Amendments Nos. 77 to 80 not moved.]

Lord Inglewood had given notice of his intention to move it Amendment No. 81: Page 9, line 43, at end insert— 10 The hunting of foxes on foot in the upland areas of England and Wales where traditionally hounds have been hunted on foot is exempt.

The noble Lord said: The amendment was conceived and drafted when the structure of the Bill was very different from that of the Bill as it is now. Bearing in mind remarks made yesterday, a number of which will require a serious consideration and reflection, I shall not move the amendment now, although I should like to come back to this matter on Report.

[Amendment No. 81 not moved.]

Schedule 1 agreed to.

Baroness Mallalieu moved Amendment No. 82: After Schedule 1, insert the following new schedule—

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