Standing Committee B
Tuesday 13 February 2001
(Afternoon)
[Part I]
[Mrs. Marion Roe in the Chair]
Schedule 3
Hunting with Dogs: Prohibition
Amendment proposed [this day]: No. 68, in page 21, line 3, leave out `took' and insert `was intended to take'.—[Mr. Lidington.]
4.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking the following amendments: No. 67, in page 21, line 3, leave out `entirely'.
No. 69, in page 21, line 7, after `which' insert `he reasonably believed that'.No. 70, in page 21, line 8, at end insert
No. 71, in page 21, line 8 at end insert
No. 87, in page 21, line 19, after `he', insert `believed that he'.
No. 105, in page 21, line 20, at end insert
The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien): I welcome you back to the Chair, Mrs. Roe. I was replying to an intervention by the hon. Member for Mid-Sussex (Mr. Soames) who asked about the meaning of the word ``stalk''. It is used in its ordinary sense to describe a dog approaching or pursuing stealthily as it tracks the scent of a mammal. Similarly, ``flush out'' is used in its ordinary hunting sense of to drive out from cover. The Dogs (Protection of Livestock) Act 1953 defines dogs being at large as not on a lead or otherwise under close control. I can inform the hon. Gentleman that that is the broad approach that we take with regard to the words ``stalk'' and ``flush out''.
Amendments Nos. 69 and 87 are further attempts to create ambiguity and so blur the force of the condition. Rather than a stalker or flusher out having to have permission from the landowner, he would satisfy the condition and so be safe from possible prosecution if he reasonably believed—or, in the case of amendment No. 87, simply believed—that he had permission from the landowner. However, that would have to be an absolute matter because one either does or does not have permission. We should not muddy the waters by creating ambiguity on this matter.
Amendment No. 70 would allow stalking and flushing out to take place on any land that the person doing the hunting had not been forbidden to use. Along with the right hon. Member for Suffolk, Coastal (Mr. Gummer) and the hon. Member for Gainsborough (Mr. Leigh), I think that the Committee should consider that proposition carefully. For example, if the amendment were made and I owned a field in North Warwickshire that I did not wish to be used for hunting, the only way that I could ensure that would be to get my secretary to contact every dog owner in North Warwickshire, and probably further afield, and expressly forbid them in writing to stalk or flush out in my field. That is a manifest absurdity. If I failed to do that or I advertently missed out some dog owners, those people would have the right to stalk or flush out in my field because I had not expressly forbidden them to do so.
Mr. John Maples (Stratford-on-Avon): Surely that is incorrect. The law of trespass would protect the landowner even if the Bill were to be enacted. If people do not have express or implied permission, the landowner is entitled to take whatever steps the law allows to stop them. The current situation is that he would not need the criminal law.
Mr. O'Brien: I welcome the hon. Gentleman to our deliberations; had he been present this morning, he would have heard me deal with the point about trespass. There are inadequacies in the protection offered by the law, particularly if someone is about to go hunting on land and the landowner does not wish to allow it.
Mr. Edward Garnier (Harborough): The Under Secretary chided my hon. Friend the Member for Stratford-on-Avon (Mr. Maples) for not noticing his remarks before lunch, but when the hon. Gentleman reads Hansard to see what he said this morning, I am not sure that he will be proud of what he said. He did not deal with the question of trespass as comprehensively and unanswerably as he suggests to my hon. Friend. For example, he said that he would need evidence of many repeated visits to a piece of land to obtain an injunction. That is not necessary. One obtains an injunction if one can show a threat to breach the law or the victim's rights. I know that the Under-Secretary does not mean to be angry with my hon. Friend, but when he looks at what he said this morning, he will see that he did not deal satisfactorily with the point.
Mr. O'Brien: It may not have been satisfactorily dealt with as far as the hon. and learned Gentleman is concerned, but it was satisfactorily dealt with as far as I was concerned. It is always possible to go to the High Court and seek an injunction.
4.36 pm
Sitting suspended for a Division in the House.
4.51 pm
On resuming—
We were looking at some of the issues relating to the amendments, and I was about to move on to some points arising out of the issue of trespass.
The law of trespass is available, but its inadequacy where someone is seeking to hunt on a person's land is obvious; the person would have to apply for an injunction. The hon. and learned Member for Harborough (Mr. Garnier) is right to say that there does not necessarily have to be persistent trespass. There may well be a threat of trespass and an injunction could be sought, but it must be sought from a High Court judge.
Mr. Garnier: Not necessarily a High Court judge. Plenty of circuit and county court judges are willing and able to deal with this matter.
Mr. O'Brien: Certainly. The hon. and learned Gentleman is right to say that it could also be a circuit judge or a red judge. It depends on the circumstances of the case. However, an injunction must be sought before a court, which may cause difficulties, given that the hunt may be just about to trespass.
Mr. Maples: Is the Minister saying that, in the absence of the Bill, it will be necessary to criminalise that kind of trespass? If he were not introducing a Bill to ban foxhunting, would the Government introduce a Bill to criminalise the trespass of those who hunt? He seems to be saying that there is a need for the Bill now. It is not in relation to the offences created by the Bill that there is a need to criminalise that kind of trespass; it can be done now.
Mr. O'Brien: The hon. Gentleman is right to pull me up on that. I am not suggesting that there should be a general law of criminal trespass in relation to everyone who trespasses on another's land. That would be absurd and unnecessary. However, when we are dealing with hunting on someone's land, to which there may be a strong objection—particularly as we are passing legislation that expressly forbids certain kinds of hunting—there is a strong case for a criminal penalty in the Bill, within the limits of the fines that it imposes. That is the approach that the House voted for. We have already debated whether it should be dealt with by—
Mr. Edward Leigh (Gainsborough): Will the Minister give way?
Mr. O'Brien: Let me deal first with the intervention of the hon. Member for Stratford-on-Avon and then I shall happily give way to the hon. Gentleman.
We have already discussed whether a civil mechanism will suffice to deal with breach or whether a criminal penalty is necessary. That issue has now been resolved by the Committee; indeed, it was resolved by the House when it chose this option. Therefore, there is no serious argument for not moving down this road. However, the particular circumstances of a hunt illustrate better than almost any other the difficulties that arise when one relies on civil penalties. Although the hon. Member for Stratford-on-Avon may not agree with the decision, in a sense the Committee has already dismissed reliance on such penalties. Hunting highlights the inadequacies of civil penalties to a far greater degree than almost any other activity.
Mr. Leigh: As the Minister said, people might have strong objections to someone hunting on such land. However, given that the person concerned would be guilty of an offence under paragraph 1 because he would be hunting, why is it necessary for him to be guilty of an offence under sub-paragraph (7)(b) as well?
Mr. O'Brien: I should point out to the hon. Gentleman that we are discussing this issue because we are trying to establish whether, with certain exceptions, flushing out and stalking should be allowed. The question is whether undertaking such activities without the landowner's consent should incur merely a civil penalty, as suggested by the hon. Member for Stratford-on-Avon, or a criminal penalty, as proposed in the schedule that his hon. Friends want to amend.
I want to make some progress—
Mr. Garnier: Before the Minister moves on—
Mr. O'Brien: I have given way on many occasions and, as is the tradition, I shall do so again in due course. However, I want to make progress and touch on at least some of the arguments before we discuss them at length.
If amendment No. 71 were accepted, stalking and flushing out would be allowed on any public land without need for the consent of the relevant local authority. Such land would include parks, playgrounds or other places in which the public might not want to be disturbed by those undertaking stalking or flushing out with dogs. On that basis, it is difficult to see why some penalty should not be established to deal with such matters. Indeed, I suspect that in most public parks across the country, hunting with hounds, flushing out or stalking would at least constitute a breach of a byelaw. Amendment No. 71 is not one, therefore, that the Committee ought to endorse.
Leaving the best of the amendments tabled by the official Opposition till last, I should say something about amendment No. 67, many of the problems with which the hon. Member for Newbury (Mr. Rendel) has clearly identified. Under the Bill as drafted, any stalking or flushing out must take place entirely on land where the person carrying out that activity is entitled to hunt. Because the amendment would remove the word ``entirely'', it would not matter whether permission had been given in respect of all land over which such an activity took place, so long as some of the activity took place on land where permission had been given.
Taking that point to its logical extreme, if 1 per cent. of the stalking and flushing out took place on land where permission had been granted, but the other 99 per cent. took place on land where no permission had been granted, the condition would still be met. To put it starkly, the amendment would give the green light to trespass and it would be very difficult to apply for various civil remedies, given that stalking and flushing out would appear to have been endorsed by Parliament. The hon. Member for Newbury rightly pointed out that if someone began stalking or flushing out from their own garden—which would probably constitute less than 1 per cent. of the land in question—they could probably continue that activity on anyone else's land with relative immunity, at least in terms of criminal law.
Unfortunately, much the same objection applies to amendment No. 105, which is in the name of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and of the hon. Member for Montgomeryshire (Mr. Öpik). That provides that rodent hunting could take place for the purpose of rodent control on any land to which the hunted quarry had strayed.
I appreciate the motive for the amendment, but it would give rodent hunters the right to pursue rodents on to my garden, even if I did not want them to do so. It cannot be right for them to be able to do that irrespective of the wishes of the landowner. Instead of the landowner having to rush off to the civil courts to obtain a remedy for trespass, it is much better to state clearly in the Bill that the activity is not allowed.
The issue has arisen previously in the context of rodent hunting and it might be helpful if I set out the position in a little more detail, as the hon. and learned Member for Harborough requested. The legal position under the Bill is that if someone is hunting rodents with a dog which strays on to land where that person is not permitted to hunt and he attempts to call the dog off, no offence is committed because there was no intent to hunt on that land. However, if that person allows the hunting to continue, an offence is committed because the person is intentionally hunting on land where he has no permission to hunt. We should not forget that those who are affected by hunting object most to the invasion of privacy that it causes. We should ensure that such hunting as the schedule allows to continue does not involve trespass.
That is the right policy; it is the responsibility of anyone hunting to ensure that he confines his activities to places where he has permission to be. Any responsible hunter would do that to ensure that the added possibility of criminal sanctions would not affect him. In addition, for a landowner whose land is being hunted on against his wishes, the possibility of ultimately securing redress in the civil courts is little consolation. A criminal offence, which the police have immediate power to deal with, is likely to ensure that the hunting in question is brought to a conclusion more quickly.
Most tellingly, there is the precedent of section 68 of the Criminal Justice and Public Order Act 1994, which creates the offence of aggravated trespass. Many Committee members are aware that that is one of the main weapons used against hunt saboteurs. It provides that obstructive and disruptive behaviour, which alone would not necessarily constitute a criminal offence, does so when combined with trespass. In other words, there is a clear precedent for trespass turning otherwise lawful behaviour into criminal conduct.
There is a difficulty for those who believe that it is right to have section 68 of the 1994 Act on the statute book so that a criminal penalty can be imposed when saboteurs trespass but do not want a similar provision to be imposed in legislation covering flushing out and stalking.
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