Mr. Öpik: The Minister's response is helpful in clarifying the issue. I shall take up his suggestion to think about an amendment that, if accepted, would make me feel more comfortable with the problem.
The Minister might be aware that sporting rights for hunting, fishing and shooting tend to reside with the landowner rather than the tenant. Will he comment on what might be regarded as the slight contradiction in the definition in the schedule? It states:
(b) manages or controls it, or
(c) occupies it.''
Mr. O'Brien: Let me consider that point. I do not think that there is a problem considering that retaining a right or interest in the property could include the ability to grant the rights to hunt, fish or shoot on the land. Therefore, the person would be covered by the provisions. As far as I can see, paragraph 22(a) would cover the hon. Gentleman's point.
I noted another issue that the hon. Gentleman raised about the way in which a defence operates. A defence is raised on the balance of probability. However, a prosecution must be put beyond reasonable doubt. In colloquial terms, the prosecution must prove their case 100 per cent., whereas the balance of probability is weighted 51 per cent. to 49 per cent.
Mr. Leigh: I should like to return to my legal argument with the Minister. I was making the mistake of referring to ``Archbold'' without having the volume before me. That is always unwise, but thanks to the Library, I now have it here. I am a tiny bit miffed with the Minister, because he caught me off guard. He made an intervention that he thought was devastating, but he was intimating to you, Mr. O'Hara, that my points on common law interpretation of aiding and abetting applied only to indictable offences and, therefore, that everything that I was saying was, to use a very un-legal expression, a load of cobblers. Having now acquired ``Archbold'', I am not convinced that that is truein fact I know that it is not.
I may have misread it, but as it stands, paragraph 2 makes it an offence for a landowner knowingly to permit his land to be entered or used for the commission of an offence of hunting a wild mammal with a dog. That approach is flawed for a number of reasons. Although the offence might be regarded as secondary, it is not. It is a primary offences and as such goes beyond the normal common law rules relating to secondary parties. Common law has already clearly established that someone who aids, abets, counsels or procures a commission of offence by someone else is guilty of the like offence. There is no need for the paragraph. That is as far as I got last time; it is based completely on 18-1 of ``Archbold'', which states:
The most important point concerns summary offences, and is dealt with in paragraph 18-4. According to the paragraph, section 44(1) of the Magistrates' Courts Act 1980 states:
A huge corpus of law has naturally built up around the concept of aiding and abetting. Many people have thought about it over a long period, and it covers everything that we might want to discuss. For instance, paragraph 18-9 of ``Archbold'' states:
It is important that we get this right. We are creating law, and under the rules established in Pepper v. Hart, the courts will use everything that the Minister says. We are not conducting a trivial exercise; anything that the Minister says can be used by the courts against him, or against those whose livelihoods are at risk. ``Archbold'' deals with concepts such as mens rea, capacity and presence. For example, paragraph 18-13 states:
These are important issues. Parliament and the courts have recognised that in dealing with criminal offences, such matters must be carefully tied down. I hope that the Minister will explain why, almost uniquely to this particular offence, he is putting in his Bill--it is not Deadline 2000's Bill--the provision that we cannot rely on the traditional common law interpretation of aiding and abetting or on the Magistrates' Courts Act 1980.
Mr. Mike O'Brien: First, the hon. Gentleman quoted at length from ``Archbold'', much of which referred to felonies. He will be aware of the relationship between felonies and indictable offences from his tuition before qualifying as lawyer. He quoted section 44(1) of the Magistrates' Courts Act 1980 and I am happy to examine that, but he referred to courts having jurisdiction. I shall examine the precise quote from ``Archbold'' to see whether my interpretation is the same as his.
Despite what the hon. Gentleman said, the issue remains one not of technicality but of policy. It is for the House of Commons to decide whether it wishes to endorse a particular policy. There is always a strong argument for making the intention of the House explicit in statute. Relying on common law, which develops and changes as judges make new decisions based on the system of precedent, can, because of the way in which it develops, give rise to doubt as to the intention of Parliament. If Parliament makes law on controversial matters such as hunting, it is right and proper that it is explicit. The hon. Gentleman would be criticising me more strongly today if I had introduced the Bill without the provision in the schedule. If I had not set out the further provisions in paragraph 2, he would have said that people would perhaps be caught for aiding and abetting, too. We are seeking to clarify that ``perhaps'' by having the provision clearly set out in the schedule.
The hon. Gentleman referred to Pepper v. Hart, but that is applicable only if I am giving guidance on how a provision should be interpreted, because it relates to interpretation. With respect to the hon. Gentleman, he needs to be clear about when Pepper v. Hart applies and I suggest that, in our present debate, it does not. It applies only when I introduce a provision and indicate how Parliament and the Government intend the provision to be interpreted. If we were prepared to accept the amendment, I could set out how it should be interpreted. However, I do not intend to accept it and I advise the Committee to reject it.
Mr. David Rendel (Newbury): I am sorry to intervene so late in the day, but a further point has come to my mind. There is one aspect to which the provision has special relevance. It is my experience that many tenant farmers strongly oppose hunting because of the damage that sometimes occurs on their farms, but they allow it because they feel under pressure from landowners, who often lead those who are in favour of hunting. That is particularly important to the matter that we are discussing.
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