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Mr. Lembit Öpik (Montgomeryshire): The proponents of the schedule are aware of the need to find a balance. Let us remember that gun packs are not being banned. The schedule seeks to draw a distinguishing line, which is still vague at the moment. Does the hon. Gentleman agree that there is no great sacrifice of principle in taking on board the burden of proof argument that he is advancing, but there is a sacrifice of justice if we do not? Mr. Maples: The hon. Gentleman puts the argument cogently. I am hoping that the Parliamentary Secretary will be able to give some ground in that respect. I am a lapsed lawyer, and it is a long time since I had to engage in this sort of stuff. If one asked most non-lawyers—or, indeed, schoolchildren—for an illustration of the fundamental principles of English criminal law, the first thing that would come to their minds would be the principle that one is innocent until proved guilty. It is the job of the prosecution or the state to prove that one is guilty before one is punished or deprived of one's liberty. Yet the Government are prepared to reverse that principle in relatively trivial circumstances. My hon. Friend the Member for Gainsborough has quoted from ``Archbold''. I shall quote from a former Lord Chief Justice, who said:
Mr. Leigh: The Bill's supporters must take on board that point about the convention. I am not giving away secrets, but many people are actively thinking of taking this issue to the European Court. If the Bill's supporters push their boat out too far, they will make it even more likely that the boat will be stranded on the beach of European law. If they want the Bill to survive, they should beware. Mr. Maples: My hon. Friend makes a good point. There are at least two bases on which the proposed legislation could be challenged under the European convention on human rights. One is the way in which the law bans hunting, and whether that is an intervention in people's liberty and use of property. That fundamental aspect of the Bill may be challenged. The Government appear to have come to the conclusion that the Bill is not vulnerable to a challenge on those grounds; the Home Secretary has at least made a statement to that effect. We are discussing another aspect of the Bill that may be challenged. It is a subsidiary, rather fundamental, aspect of the Bill: whether the burden of proof is on the defendant or the prosecution in subsidiary and incidental offences. We can refer to the fundamental principles of common law, the Lord Chief Justice and countless cases in ``Archbold''. I am glad that my hon. Friend the Member for Gainsborough brought ``Archbold'' along, so that we can all refer to it—[Interruption.]. The Chairman: Order. There is too much chatting going on. I cannot hear what the hon. Gentleman is saying. If hon. Members wish to have a conversation, perhaps they should have it outside. Mr. Maples: I am grateful, Mrs. Roe. We are discussing not what we have been arguing about a great deal in Committee—whether hunting in one form or another should be illegal—but subsidiary and somewhat incidental offences that relate to a fundamental principle of criminal law. The proposal has been resisted for hundreds of years by common law, by the courts and by Parliament, except in exceptional circumstances. I shall be interested to see whether the Parliamentary Secretary argues that this is an exceptional case, which therefore requires the burden of proof to be reversed. Such a reversal has been resisted also by the European Court of Justice and therefore, by implication, in the European convention on human rights. Arguments of precedent and principle seem to stack up overwhelmingly on our side of the argument. For the Government to prove that this situation is so different and so important that the burden of proof must be reversed seems to me an impossible task, but I wait to see whether the Parliamentary Secretary can do it. We are not talking about organised hunting. All right; we can ban organised hunting. We all know an organised hunt when we see it. That is not what these offences and exceptions are about. They are ingredients of the offence. We are defining, in what the Bill describes as exceptions, the ingredients of an offence, which have to be proved. There is not an offence if one is flushing out game for the purposes of falconry. Therefore, the prosecution should have to prove the whole offence. The exceptions are really areas to which the offence does not extend. It is not as though there are exceptions if one commits the offence because one is drunk, because one is eight years old or because one is made to. In the circumstances that we are debating, it is not an offence to use one's dog to flush out a rabbit for the purpose of shooting. However, the Bill makes it an offence unless one can prove that one was doing so. Some fundamental points are at stake. We shall make bad law if we reverse the burden of proof in such somewhat trivial circumstances. We will draw a dividing line not between what is wrong but not criminal on the one hand and what is wrong and criminalised by Parliament on the other, but between what is wrong and to be criminalised on one hand and what is legal, desirable and to be encouraged on the other. In creating fine lines between right and wrong, we should not put the burden of proof on the defendant, who will often be a country person—a farm labourer, shepherd, goatherd or gamekeeper—who does not have the means to go to lawyers or the ability to get good legal advice and legal representation to make what may turn out to be a complicated point in court. Mr. Leigh: We must emphasise this point. I intended to do so, but I did not; my hon. Friend is doing so very well. I hope that the Parliamentary Secretary will listen and try to reply to it. Traditionally, the burden of proof has been reversed when the accused has committed an offence of carrying explosives, of murder or of whatever it is that is wrong. In those circumstances, the accused can claim, ``I committed the offence, but it was a mistake'', that it was a matter of automatism, that the victim gave her consent, that drink was to blame or that his age was a factor. However, the Bill provides for different circumstances, which makes it a complex legal matter that must be considered in the other place. When one is stalking, retrieving an animal or any of the other so-called exceptions, one is not committing an offence. That is a powerful argument. Mr. Maples: I hope that the Parliamentary Secretary will respond to the amendments in the spirit in which they were tabled. We are being invited to pass legislation that breaches a fundamental principle of English law that has been around for hundreds of years. Indeed, exceptions to that rule are so rare as to prove and reinforce it. Moreover, the Bill is possibly in breach of the European convention on human rights. It would be extraordinary if we were to draw a dividing line between criminal conduct and conduct that is right—and, in the case of rodent control, conduct that is actually a legal obligation imposed on property owners—rather than between criminal conduct and conduct that is wrong but not quite criminal. I hope that the Parliamentary Secretary will not claim that Deadline 2000 is responsible for the schedule, which is an excuse often used by Labour Front Benchers. The notes that I have seen passed to her by civil servants belie that argument. It seems to me that she, or at least her civil servants, concedes that arguing this point is a Government responsibility. It would not go the root of the Bill to concede the amendments, but it would meet a fundamental objection. Mr. Öpik: The issue has been highlighted and does not need to be repeated, but it is important to hear how the Parliamentary Secretary feels we could make progress. Deadline 2000 has sponsored the schedule, but the Committee is responsible for ensuring that it is workable and just. To that extent, I hope that the Parliamentary Secretary will share the Government's perspective on the issues, rather than saying, ``This is what Deadline 2000 wanted.'' I have no doubt that Deadline 2000 also wants workable legislation that is seen to be fair, although I imagine that that is a difficult issue for the Parliamentary Secretary to discuss. Nevertheless, the Government should be committed to tackling head on the challenges concerning natural justice that have been highlighted. Jane Kennedy: First, I say to the hon. Member for Gainsborough that this is not a complicated legal issue. I can understand it as a non-lawyer, and I hope to be able to explain it to the Committee. One does not need a fine legal brain to understand this section of the schedule. My reply to the hon. Members for Stratford-on-Avon (Mr. Maples) and for Montgomeryshire (Mr. Öpik) is that hon. Members who support schedules that were not supported by the House are wrong to constantly chide the Government for the terms in which we discuss the schedule. It was a decision of the whole House to support the schedule. Because Opposition Members happen to be the ones advancing the arguments against the Bill as decided by the House, they are wrong to suggest that all their opponents are on the Government Benches. This is a cross-party matter. In the Committee of the whole House, schedule 3 was supported by hon. Members from all parties.
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| ©Parliamentary copyright 2001 | Prepared 8 February 2001 |
