Mr. Garnier: It is not on our marshalling list for today.
The Chairman: No. It was on the previous list.
Mr. Garnier: We are ad idem, but we were initially slightly confused.
The Chairman: I am trying to be helpful, but I do not want a repetition of the minutiae of the words in the provision. We have had an exhaustive discussion of the concept of knowing, knowingly permitting, express permission and so on. We are now discussing whether the provision improves or diminishes the Bill and whether it should be included or excluded. I want to focus on the amendment and not to return to previous debates.
Mr. Garnier: On a point of order, Mr. O'Hara. It is entirely my fault because I was confused by your reference to amendment No. 39. I apologise to the Committee and to my hon. Friend the Member for Gainsborough for that unnecessary interruption.
The Chairman: I was simply saying that amendment No. 39 was selected for a previous debate.
Mr. Bercow: On a point of order, Mr. O'Hara, I should be grateful for your guidance. Can we distinguish between dilating on and referring to something? It would be an extraordinary requirement for my hon. Friend the Member for Gainsborough, when arguing for deletion of paragraph 3, which specifically majors on the concept of knowing that something was an issue, if he is not allowed within the rules of order to refer to the concept of knowing permission.
The Chairman: Indeed; that is precisely my point. Of course it is possible to allude to previous debates, but I am trying to avoid dilation on them, as I am sure the hon. Member for Gainsborough understands.
Mr. Leigh: This is important. I can move on to other aspects, but paragraphs 2 and 3 are different and I wanted to allude to different case law. Are you saying, Mr. O'Hara, that I cannot debate the concept of knowingly as in ``knowingly permits'' a dog to chase an animal? I would argue that this is a different debate from that on the ownership of land. Are you ruling that I cannot discuss the concept of knowingly?
The Chairman: I am saying that the opportunity to debate specifically and to dilate on those words in line 32, paragraph 3 has passed. Of course I can allow allusion, but it is for me to judge whether allusion turns to excessive dilation.
Mr. Leigh: I do not want to go on about knowingly if you will not allow that, Mr. O'Hara. There is an interesting new argument, but we may be able to approach it differently.
We can start to consider paragraph 23 because paragraph 3 refers to
We have not had much discussion so far on paragraph 23, but it is a worrying paragraph for a gamekeeper or the owner of the dog. I remind the Committee that paragraph 23 states:
(a) owns it,
(b) is in charge of it, or
(c) has control of it.''
I have read that many times and I am still trying to work out what it means, because it is important to know. When a case is brought, as it will be, will the gamekeeper have to own the dog and be in charge of it or just be in charge of it?
What is the difference between sub-paragraphs (b) and (c)? I can understand the expression ``owns it'', but what would happens if I owned a dog, but my son took it for a walk? Who would be prosecuted? Would I be prosecuted because I owned the dog, although at the material time when it chased the rabbit and killed it, I was not in charge of the dog and had no control over it? Who would be guilty of the offence? Would I be liable to prosecution, as the owner of the dog, or would it be my son, who is a juvenile, because, at the relevant time, he had charge of the dog? What is the difference between the words
and ``has control of it''? To my thinking, they are one and the same. Does my hon. Friend wish to assist me on the difference between the three phrases?
Mr. Bercow: I am sorry to disappoint my hon. Friend because I fear that my intervention probably will not assist him, but he has provoked a further thought in my mind which seems to underline the paucity of the drafting of the schedule. Does he agree that it is possible to be in charge of but unavoidably unable to exercise control over the animal?
Mr. Leigh: I believe that the schedule will lead to the most complicated legal argument. I have no doubt that the test case to which I alluded, which was first brought up in Worcester magistrates court, could conceivably end up in the House of Lords, because most legal concepts of foreseeable consequenceI want to deal with those concepts in a momentdo not apply.
The court must presumably have to prove, first, that my son was in control of the dog and, secondly, that he could foresee the consequence of letting the dog off the lead, because it would certainly chase the rabbit. The rabbit is dead: that is the evidence available to the court. It is relatively easy for the prosecution to prove that my son was guilty of the offence, because dogs chase rabbits. Could the gamekeeper, my son or anybody else therefore be found guilty simply because the dog was off the lead and a rabbit was killed? That is surely a foreseeable consequence of letting a dog off the lead in any known situation. That is not a trivial point. The Minister will agree that it would be absurd if a prosecution succeeded on that basis, but a prosecution could be so brought against a person.
People have tried to grapple with the concept of foreseeable consequence.
Mr. Mike O'Brien: The hon. Gentleman says that a prosecution might conceivably be brought. Does he agree that, first, it is unlikely and, secondly, given the terms of reference of the Crown Prosecution Service, it is unlikely to be in the public interest?
Mr. Leigh: We are returning to the debate that we had a few minutes ago. I conceded that the Minister does not wish the Crown Prosecution Service to bring such a prosecution, but, given the stance of the League Against Cruel Sports against organised shooting, it is possible that a test case will be brought against a gamekeeper. The Minister cannot wash his hands of the situation like Pontius Pilate and say that it will not happen.
Mr. O'Brien: I do not seek to wash my hands of the matter like Pontius Pilate, as the hon. Gentleman suggests. He is making an argument and I am seeking to deal with it. We must look at the reality of the circumstances. If a frivolous prosecution were sought, the Crown Prosecution Service would retain the right to take over a prosecution and then discontinue it.
Mr. Leigh: Yes, but that prosecution would not be frivolous because, in its wisdom, Parliament has agreed the Bill. The House has left the paragraph in the Bill and therefore presumably intended it to be implemented. It is not good enough for the Minister to say that what I have described will not happen. If that is so, why is the paragraph in the Bill? Surely the only reason for the Bill is that those who support it are concerned with stopping not only organised hunting by large groups, but individuals from hunting. Is that not the case?
Mr. O'Brien: I am not saying that paragraph 3 should not be in the Bill. That is a matter for the Committee, but it is a straightforward judgment. The paragraph is intended to catch those who let others use their dog, knowing that it will be used for unlawful hunting. The effect of that and how a prosecution would be brought under that provision is clear. The hon. Gentleman is testing the limits of the paragraph. That is proper and I do not argue with it, but there is a limit to its reasonableness and he is going beyond it.
Mr. Leigh: That is an interesting intervention. The Bill is not clearif it had been, we would not have had this debateand the Minister is introducing a new concept. Now the evil with which paragraph 3 is intended to deal is that of a person who lets others use his dog for hunting. If I understand him rightly, paragraph 3 is intended to stop people providing their dog or their houndI apologise to my hon. Friend the Member for Mid-Sussex
Mr. Soames: It could be a dog.
Mr. Leigh: It could be a dog, but let us not get too hung up on that. The Minister is saying that the evil with which this is intended to deal is someone who lends his dog to others for use in hunting. That is a worrying interpretation, because it is not clear from the Bill.
Although it is right that one can look to the Minister for help with interpretation, the primary source in order to understand an Act of Parliament must be what is in the Bill. Paragraph 3 says:
not another person's dogany dog. The paragraph is clear: it can catch a person who either lends his dog or hounds to others to be used for hunting, or catch a person going about a lawful activity. It is unfair, three-quarters of the way through the debate, after a long exegesis on these matters by my right hon. Friend the Member for Suffolk, Coastal, for the Minister to introduce a new concept. He is saying that what we are debating now is not at all what my right hon. Friend was talking about, but something different.
Mr. O'Brien: I am not sure whether the hon. Gentleman, for whom I generally have a great regard on these matters, has followed the debate as well as he thinks he has. His right hon. Friend understood the purpose of paragraph 3 and the effect of paragraph 23. When the hon. Member for Gainsborough reads his comments in Hansard, he may find that they show that he has not understood the effect of either paragraph 23 or paragraph 3. The debate has clearly been about letting others use one's dog in order to hunt.
Mr. Leigh: That is what the Minister tells us now, but if that is so, why is it not set out more clearly in the Bill? Surely, with all the advice available to him, the Minister is capable of having a paragraph drafted that, unlike the present wording, makes it clear that it designed simply to catch people who lend their dogs to others?
|©Parliamentary copyright 2001||Prepared 1 February 2001|