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Mr. Peter Atkinson (Hexham): I can confirm that no hunting of deer with hounds takes place in any of the border counties. It does not take place in Northumberland or Cumberland; it happens only in the south-west of England.
Mr. Lidington: I am grateful to my hon. Friend.
I have based my remarks on foxhunting because it presents us, as a legislature, with a real issue. Foxhunting with hounds takes place in the border regions of both Scotland and England, and across the border. The practical issue that the House and the Government must address is, I submit, different from the theoretical speculations of the hon. Members for West Ham (Mr. Banks) and for Dumfries (Mr. Brown).
Mr. Atkinson: I should point out that one pack in my constituency, the Border Foxhounds, has hunting country on both sides of the border. Other packs hunt on one side but may cross; this pack crosses the border regularly, as a matter of course.
Mr. Lidington: That reinforces my point.
How would the ban be enforced in practice, in terms of the border between England and Scotland? If that border is not clearly marked along its length, people travelling in upland country will not be sure when they have moved from England into Scotland or vice versa. One can conjure up odd visions of police constables being deputed to stomp around farmland and moorland in galoshes and plastic macs, spreading out from path to path to make sure that the boundary was policed. I am prepared to accept that that is not the Government's intention, and I am sure that it is not the intention of any chief constable on either side of the border; but if there is one criminal law in England and another in Scotland, people will go to the police and allege that this or that group of individuals intends to hunt illegally in England from a starting point in Scotland. What are the police supposed to do in such circumstances?
My amendment would introduce clarity into an area of the law that would otherwise be confused and ambiguous. Moreover, it has the great merit of enabling people on
both sides of the border between England and Scotland to know exactly where they stand and what the law requires them to do, or to desist from doing.
Mr. Beith: Mine is one of three constituencies directly affected by the subject matter of the amendment, the other two being Hexham and Penrith and The Border. Those constituencies are in England, are therefore affected by the Bill and border Scotland. In each case, there are substantial hunting activities on both sides of the border.
Appreciation of where the border lies is not widespread. This evening, talking to one of my hon. Friends, I was shocked to discover that he used the expression, "north of Hadrian's wall" in the mistaken belief that all that lay north of the wall was in Scotland. Admittedly, he was from the south coast, but it showed a distinct lack of appreciation. I do not think that many people appreciate that, for example, in parts of the area that we are discussing, it is possible to travel due north from Scotland to England, or due south from England to Scotland. The border follows a complicated line, which in most areas is not marked.
In some of the Cheviot areas, along the border, there is a two-strand wire fence that any small animal would have no difficulty in getting through. In much of the border country, there is no marking at all. As the hon. Member for Beaconsfield (Mr. Grieve) has pointed out from his legal experience, there have been cases about islands in the Tweed. The border in the Tweed is a shifting border, or at least the land shifts. The border may stay in the same place, but the land shifts and that makes it difficult to define it, so we have a practical problem.
Eight packs of foxhounds hunt adjacent to and across the border: the Bewcastle, the North Tyne, the Border, the North Northumberland and College Valley, the Berwickshire, the Jed Forest, the Buccleuch and the Liddesdale. The West Percy in my constituency comes very close to the border and, I suspect, will face the same problem.
Many of those hunts regularly cross the border. The hon. Member for Hexham (Mr. Atkinson) said that Border Foxhounds hunts in country that crosses the border and therefore, as a matter of course, operates on both sides of the border. The same is true of the North Northumberland and College Valley hunt, which is kennelled in my constituency, but has country on both sides of the border, which is not clearly marked.
There is, therefore, a practical problem. Although the hon. Member for West Ham (Mr. Banks) was right to point out that, for many years, there have been differences in the law between England and Scotland, the one that he cited has no practical effect because there is no stag hunting in the border areas of England. For that matter, I do not think that there was much in the border areas of Scotland before it was banned; it was mainly a highland activity. The deer legislation is drafted in such a way that, unlike this legislation, it does not ban deer stalking. There is deer stalking in forest areas in the borders. Dogs may be used to assist in the locating of deer prior to their being shot. That matter is intended to be dealt with by a later amendment.
I was slightly concerned when the Minister indicated two things that I had not realised. The first was that it had been his intention all along to ban deer stalking, but that he had now changed his mind. The second was that that
was only his view, that it was entirely a matter for the House and that there was no Government view on whether the Bill should ban deer stalking, but we will come to that later.There is a practical problem in relation to foxhunting. There is a practical problem for a further reason, which is emphasised in the Burns report: the nature of the country in the Cheviot and other areas. Few areas in England are more wild than the Cheviot summits or the area north of Spadeadam Waste in the constituency of the hon. Member for Hexham. Fox control in those areas is very difficult and lamping is unsuitable. That is made clear in the Burns report. There was a pretty heavy steer in the report towards tolerating some sort of hunting of foxes with hounds in those upland areas. We have passed the point where the Government would have accepted that, but what they must recognise is that, in country on both sides of the border, dogs have to be used to locate foxes and, indeed, to deal with other pests.
That brings me to wider issues of pest control. Although we have looked at the matter primarily in relation to foxhunting itself and the difficulty faced by the hunts, gamekeepers, countryside wardens and others involved in pest control who operate on the border will face the problem of the difference in the law. It seems inconceivable that legislation will be passed by the Scottish Parliament that does what the Hunting Bill does--which is to insist that if a rabbit is flushed out, it is immediately shot with a gun. I cannot imagine that the Scottish Parliament will pass such legislation. I also think that it is now unlikely that there will be a total ban on hunting in Scotland. It is a matter of speculation, and hon. Members cannot assume that there will be comparable legislation in Scotland.
Therefore, if a gamekeeper with a dog is dealing with rabbits and reaches the border, although there was not necessarily a requirement for him to carry a gun or to use it on his side of the border, the moment the dog chases the rabbit into England the gamekeeper will have to shoot at the rabbit. It is not sensible to put that gamekeeper in such a situation.
The legislation would have a similar effect in relation to the celebrated topic of rats in cellars, on which we shall vote later. If a dog goes underground in pursuit of a rat and crosses the border--which is perfectly easy to do along the banks of the Tweed, for example, or in any other rough country--the situation would immediately change. The dog would have to be called off, or the gamekeeper would have to prove that he did not have any intent that the dog should cross the border.
Much will turn on the defence that can be used in court. In many cases, it could be difficult if the prosecution insists that, as the gamekeeper was so near the border, he must have known that there was a risk of the dog crossing it. Unfortunately, however, once a gamekeeper is employed in a particular place, he has to deal with the rodents and rabbits in that place. Consequently, his work may be along the border. In such circumstances, there is no way in which he can simply exclude the possibility of his dog crossing the border.
Mr. Hogg: Does the right hon. Gentleman therefore agree that, in reality, unless we accept the amendment, the Bill's effect would be to prevent the gamekeeper or anyone else engaged in country sports from practising
them close to the border, for fear that they would contravene the criminal law in England? Is that not to derogate from the rights of Scots?
Mr. Beith: A solicitor might advise the gamekeeper's employer that it was unsafe to allow his gamekeeper to work in the usual way, close to the border area. I put it no stronger than that. It is similar to the situation in relation to many issues. Nowadays, employers have to take legal advice or they take risks. A solicitor might advise that it is unwise to allow such work as one might be unable to sustain a defence in court. That in itself is a limitation of British democracy.
I do not, however, entirely follow the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) in making a constitutional issue of that, as it seems that there will inevitably be some differences on either side of the border. The job of this place when passing legislation is to consider the practical implications and decide whether the law goes too far in creating practical difficulties with far-reaching consequences for people on the other side of the border. Therefore, although the point is a genuine one, I do not believe that it is constitutionally improper for the Government to legislate differently for our side of the border. We just have to consider the practical consequences.
I contend that, if we do not have some provision along the lines of that suggested by amendment No. 76, the practical consequences could be difficult. If the Bill is passed without the amendment, it would extend across the border difficulties that gamekeepers will have in England. The Bill would affect gamekeepers on the other side of the border who could otherwise perform their work in their traditional way, and might expose them to legal challenge.
I therefore agree with the right hon. and learned Gentleman's contention, but with a slight modification. I say that we would be creating an unfair and unreasonable practical difficulty if we did not adjust the legislation to meet that particular case. Although that is not the biggest issue raised for those categories of people by the legislation, it is a real practical issue.
If I were a member of the North Northumberland and College Valley hunt, I would want to retain if I possibly could the hunt's rights in its own country, on the Scottish side of the border, to continue hunting. However, the kennels are in England. As there is now so little country to hunt, the hunt can hunt only one day a fortnight rather than a couple of days a week. Nevertheless, each time we hunt, we take the pack and the horses over on to the Scottish side--south into Scotland. Does that show an intent to hunt in England? I am not a hunting person, but I am putting myself in the mind of people who are. Proving one's innocence in court will be difficult, and so genuine rights are put at risk. Any cautious solicitor will tell people not to risk any such action, as a successful prosecution could ensue. It is therefore worth pursuing a proposal along the lines of the amendment, and I hope that Ministers will be sympathetic, as they have been to some of my other suggestions.
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