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Mr. Lidington: Why would the powers in section 68 of the Criminal Justice and Public Order Act 1994 be inadequate to cover behaviour that is genuinely disruptive in the sort of circumstances to which the Under Secretary refers? Mr. O'Brien: We are dealing with the activity of flushing out and stalking. If it were not covered in the schedule, it would be left to the courts to interpret whether the activity amounted to the obstructive and destructive behaviour addressed by section 68 of the 1994 Act. We are making it clear that that activity will not be allowed under the schedule if it takes place without permission. It makes explicit a similar but not exactly the same provision as that in section 68 of the 1994 Act. The Government remain neutral on the Bill, but we have a duty to ensure that when it reaches the statute book it is sensible and workable. I cannot advise the Committee to accept the amendments. However, a number of points have been made during our debate that I want to consider further. Those points were raised primarily by the right hon. Member for Suffolk, Coastal, who has apologised to me for not being present this afternoon. I am grateful to him for telling me why and he will no doubt be able to see my response in Hansard. He raised a couple of points that I wish to consider. I am not sure whether they will merit an amendment, so I cannot say whether I am likely to table one. I want to consider two aspects. The first relates to land that is ambiguously owned—where ownership cannot be clearly identified. I note that the provision in the schedule is quite wide, but I want to be sure that it covers the various options that the right hon. Gentleman suggested might arise. Secondly, the hon. and learned Member for Harborough asked whether a person could retrospectively give consent. In other words, somebody has gone on to land and has stalked or flushed out, and the owner of the land, although likely to give permission—indeed the person thought that permission had been given—had not given it. None the less, when the owner of the land found out that the flushing out or stalking had been carried out, he had no objection to it. I shall consider that issue, because the concept of retrospective permission was raised not only by the hon. and learned Gentleman but by the right hon. Member for Suffolk, Coastal. The right hon. Member for Berwick-upon-Tweed, who apologised for not being in his place, referred earlier to the police and the Royal Society for the Prevention of Cruelty to Animals dealing with an injured wild mammal. He was concerned about a diseased mammal, such as a fox, which the RSPCA wanted to take into its custody or dispose of. We shall shortly come to amendment No. 121, which deals with diseased animals. Although the right hon. Gentleman is not in his place, I can say that the Government will be neutral on that amendment. The matter raises difficult policy issues, and the Government have decided to leave it to members of the Committee to take a view. The Bill could be amended without significant damage to its effectiveness, although I shall comment on that when we come to the amendment. I hope that hon. Members feel that the debate has raised some issues of which the Government wish to take serious account, including the three points that I have mentioned. However, none of the amendments deals with those issues seriously, at least not in a way that would be acceptable to the Government or, I suspect, on reflection, in a way that would make good law. Therefore, I ask the hon. Member for Aylesbury (Mr. Lidington), in view of my conciliatory approach at least towards the end of my contribution, to seek to withdraw the amendment and to accept that the Government listen when good arguments are made but do not listen so much when they are not so good. Mr. Lidington: At least the Minister's sense of humour has not deserted him. I want to deal first with a couple of the misapprehensions that have crept into some of the contributions to the debate. It has been a helpful debate, because it has enabled us to elucidate some of the issues surrounding the notion of reasonable belief in respect of stalking or flushing out on certain properties. I want to deal first with the short speech of the hon. Member for Newbury, who drew a distinction between amendment No. 105—to which he was grudgingly prepared to allow space on the ground that it dealt with rodent control—and the other amendments, which he said were about stalking and flushing out, were purely about sport, had no motivation other than enjoyment of sport and therefore would give those engaged in a rather reprehensible pursuit far too much freedom. I must draw the hon. Gentleman's attention to paragraph 7(3)(a), which makes it clear that for stalking and flushing out to qualify as exceptions from the offences defined in sub-paragraphs (1), (2) and (3), the motives underlying such activities must concern either conservation or pest control. If the motive were purely sporting, stalking and flushing out would not be lawful under the terms of the exceptions listed in the schedule. Paragraph 7(3)(a) states:
Mr. David Rendel (Newbury): I am sorry if I misled the hon. Gentleman. I thought that I said that there are three purposes to stalking and flushing out, which are indeed listed in the Bill. Certainly, gamebirds are often protected with the intention of enabling lots of them to be successfully shot; in that sense, the ultimate purpose of stalking and flushing out is undoubtedly sporting. Sub-paragraph (3)(c), which is clearly intended to enable the hunting of mammals with birds of prey, presumably relates mainly to the sport of falconry. It is therefore clear that there are sporting intentions, but I did not say that sport is the only purpose to which the provision relates, and I apologise if the hon. Gentleman felt that I implied as much. I did mention other purposes; indeed, I listed them explicitly in answer to an intervention. Mr. Lidington: I am grateful to the hon. Gentleman for that intervention. Although there can be an underlying sporting motive for some of these activities, paragraph 7(3)(a) makes it clear that we are dealing with pest control and conservation. To try to separate matters in paragraph 7 from those in paragraph 8 is to describe rather more of a difference than actually exists. Mr. Leigh: When my hon. Friend was making that point, it occurred to me that this debate is completely unreal. If someone's dog kills a rabbit, it is hardly the crime of the century. The person concerned would have to meet all the conditions to which my hon. Friend referred. Is anyone seriously going to take this bloke to court because he failed to meet the condition in sub-paragraph (7)(a), even though he has met all the other conditions? [HON. MEMBERS: ``Precisely.''] Why is the provision in the Bill, then? Talk about over-egging the pudding! It is not as if we are trying to catch an infamous mass-murderer. The argument is ludicrous, and we need to bring some common sense to this debate. Mr. Lidington: My hon. Friend is absolutely right. The fact that we are dealing with absurdly complicated, ambiguous exceptions to a general ban illustrates the mess into which proponents of a ban have got themselves. Legislation that was drafted to end organised hunting with hounds will in practice impact severely on the everyday activities of many other people in our countryside, and the authors of the schedule have given inadequate thought to how that impact might be mitigated. At no point was that more apparent than in the debate on, of all things, property rights. At times I wondered which debate I might have strayed into, because we are not discussing property rights. I was touched by the Under-Secretary's concern for the landed gentry. New Labour, old Whigs; history is beginning to turn full circle. The Under-Secretary said that to agree to the amendments would be to give people the right to hunt across his garden. However, we are not discussing hunting because none of the amendments in the group qualifies the primary offence of hunting with hounds laid out in paragraph 1. For the purposes of debate, we are discussing a situation in which organised hunting with hounds has been banned. My hon. Friend the Member for Gainsborough said several times that if the ban were to pass into law, the packs would quickly disappear.
5.15 pmMr. O'Brien: I am anxious that the hon. Gentleman should traduce me less. The schedule concerns banning hunting with dogs and I am using ``hunting'' in the generic form, which might include stalking and flushing out. I am not suggesting that packs of dogs will chase across my garden, but somebody might come ratting in it; one never knows. Mr. Lidington: I accept the Under-Secretary's good faith and qualification of his earlier comments. However, that reinforces my point. The amendments try to tackle the practical circumstance of somebody who seeks to comply with the schedule, but finds that the activity of stalking or flushing out brings him inadvertently into conflict with that statute. That could be either because the dog or dogs crossed a property boundary or because there had been a misunderstanding about permission to stalk or flush out across a particular piece of land. We are not discussing property rights; we are discussing the circumstances under which it is proper, appropriate and proportionate to impose the penalties of the criminal law. As the debate has developed, I have found myself increasingly less persuaded by the Under-Secretary's argument. It is clear that aggrieved landowners have available not only the remedies of the civil law of trespass, with which my hon. and learned Friend the Member for Harborough (Mr. Garnier) dealt, but penalties under section 68 of the Criminal Justice and Public Order Act 1994. As the Under-Secretary made clear, those penalties and powers are available where obstructive and disruptive behaviour is combined with actions amounting to trespass. If the Bill is not amended, it will extend the scope of criminal penalties to action that is not considered obstructive or disruptive under the 1994 legislation. That would be a serious extension of criminal penalties which we cannot consider lightly. I am willing to accept some of the strictures of my right hon. Friend the Member for Suffolk, Coastal and my hon. Friend the Member for Gainsborough about the scope of the amendments. As I said this morning, the right hon. Member for Berwick-upon-Tweed—through amendment No. 105—and I sought to offer a number of different ways in which the problem that we have identified might be approached. The debate has helped to clarify the most appropriate of those methods. My hon. Friend the Member for Gainsborough is right that amendments Nos. 70, 71 or 67 might take us further than the Committee wishes to go. However, that leaves us with the problem of what to do when somebody reasonably intends to keep within the law, or reasonably believes that he is doing so. Amendments Nos. 68 and 69 would not blow a great hole in the Bill. They would add a detail to one of the statutory defences provided by the schedule. It would still be the defendant's responsibility to show to the civil standard of proof that his conduct fell within the terms of the exception that Parliament had given to him. The onus would be on the defendant to demonstrate to the satisfaction of the court that his belief that he had permission to go across the land in question was reasonable. A habitual nuisance—a trespasser—would find it difficult to persuade a court that his conduct satisfied the conditions of defence proposed in my amendment. We come back to a question that no one who has addressed the other side of the argument has explained. There is a contradiction in the absence in the schedule of any provision for the reasonable belief on the part of a defendant and the explicit provision for reasonable belief in the comparable sections of the Deer Act 1991. I remind the Committee that that Act creates specific offences in relation to hunting and pursuing deer. It provides a statutory defence to those offences
Question put, That the amendment be made:— The Committee divided: Ayes 8, Noes 16.
Division No. 11]
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