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The Wild Mammals Protection Bill was introduced in another place early this year by my honourable friend the Member for Dumbarton. I should like to offer him my congratulations on his success in getting the Bill thus far. It generated a great amount of interest in its
During the Bill's progress the clauses concerned with fox-hunting and hare coursing, which were in the Bill at the beginning, caused considerable difficulties and were dropped. I emphasise that point for the benefit of noble Lords who perhaps may not have looked at the present edition. The Bill no longer contains any reference to fox-hunting or hare coursing. The remaining clauses received all-party support, and the wording was cleared by the Ministry of Agriculture, Fisheries and Food and the Home Office. I understand that the wording was agreed with those departments, especially the Home Office, in discussions.
Clause 1 of the Bill extends to wild animals the legal protection presently afforded to domestic or captive animals. It will be a clear offence cruelly to kick, beat, impale, burn, crush or drown any wild mammal. I stress the word "cruelly" because that is the essential background to the exceptions in Clause 2, to which I now turn. Clause 2 lists the exceptions and makes clear that it is not the intention to interfere with legal farming and land management activities. I shall return to this point later. Clause 3 defines a wild mammal. Clauses 4 to 6 deal with the powers of the police and the courts.
There appears to be some anxiety among farmers and landowners that the Bill will affect their normal, legitimate activities. A number of questions have been sent to me and I have taken advice upon them. Noble Lords who are to speak later may be assisted if I deal now with some of those questions and the answers that I have been given.
I repeat that the offences of kicking, beating, impaling, burning, crushing or drowning are all prefixed by the word "cruelly". The meaning of that word is the subject of much discussion. It is intended in this case to have the meaning as used in the Protection of Animals Act 1911 (1912 in Scotland). This matter was carefully considered by the Divisional Court in Barnard v. Evans in connection with the offence of cruelly ill-treating a trespassing dog by peppering it with shot. The court decided that justices had to look at whether or not the defendant was doing something which it was not reasonably necessary to do. Mr. Justice Grove said in Swan v. Saunders that,
A number of questions have been sent to me by the CLA. If your Lordships will bear with me, I should like to deal with those questions and the answers. First, under Clause 2(b) what would be the situation of a farmer who had slightly damaged a rat or other pest during the course of pest control, for example if he had cut off its tail in a trap? Would he be bound to release it on the basis that it had a reasonable chance of recovering? Secondly, would the provisions of the defence provided under Clause 2(c) cover the despatch of injured pests by the use of any method set out in
The answers that I have been given are the following. First, if any rat or other pest was injured during the course of pest control there would be no offence. Clause 2(e) of the Bill makes it clear that a person shall not be guilty of an offence by reason of,
The trapper would be free either to kill the animal (presumably the object of the exercise) or, if he wished, to release it. Secondly, Clause 2(c) ensures that no one can be prosecuted under the Bill for killing, by use of the methods proscribed in the Wild Mammals (Protection) Bill, a mammal which is seriously disabled, unless that person has been responsible for the unlawful disabling of that animal in the first place. I hope that makes clear that, provided the farmer or landowner is engaged in lawful proceedings, he will have a defence in relation to Clause 1.
I come to a second group of questions. Would the provisions of Clause 2(c) cover the position of a person who was constructing a building in accordance with planning permission and who became aware of a rabbit warren in the area of construction as he was about to commence operations? The CLA says that it should be borne in mind that environmental considerations will have formed part of the original planning application.
The CLA also seeks confirmation that Clause 2(c) covers incidents where, for example, a nest of fieldmice is accidentally destroyed by ploughing. The answer that I have been given is that a person constructing a building lawfully cannot be prosecuted if, say, during that lawful operation he crushes a rabbit. It is understood that Clause 2(c) covers that situation. Presumably there is concern over the word "unavoidable" in that clause. It would be reasonable to assume that any reasonable person who discovered a rabbit warren in the way of his construction work would take steps to remove the rabbit by normal pest control before moving in with bulldozers.
Technically, if he knew the rabbits were there but nevertheless merely crushed them with the bulldozer, that could be regarded as the avoidable offence of crushing, but it would still have to be established that he cruelly crushed the rabbits. There would also have to be extensive operations to recover the rabbits to establish whether they were indeed crushed. Whether the police would go to such lengths, and whether the CPS would entertain such a technical offence as worthy of prosecution, is extremely doubtful.
Clearly destroying a nest of fieldmice while ploughing would not be an offence because of the provisions of Clause 2(c). Ploughing is a legitimate activity and so issomething about which the CLA did not askheather burning. Obviously in the legitimate activity of burning heather in order to regenerate it no landowner could be expected to clear all the mammals from the area, and it is not intended that that should be part of the Bill's aims.
I have been asked indirectly by the NFU to give examples of the kind of offence which would be prevented by the Bill. From the many details of offences which have been sent to me, I have chosen the four most typical. Two youths in Faversham, Kent, shot a hedgehog five times with an air rifle, played football with it and finally tossed it onto a bonfire to burn to death. The hedgehog, despite its appalling burns and gunshot wounds, was found alive the next day and had to be put down by a vet. The RSPCA prosecuted but, despite the chairman of the bench saying that it was the most horrific case of cruelty he had ever come across, was forced to withdraw the charges because it was not unlawful to act in that way towards a hedgehog.
Six Merseyside youths battered a wild rabbit to death in front of witnesses who testified that they had seen the assailants repeatedly throw a coat over the screaming animal and then kick it and beat it with sticks. The veterinary report showed that the rabbit died after its skull was totally crushed. The RSPCA secured a conviction, but, after an appeal to the High Court in November 1993, that was quashed because the rabbit was not deemed to be captured.
The mutilated bodies of at least seven foxes were found on a cricket pitch in Shirehampton, Bristol, last summer. It appeared that the animals had been set upon by dogs and then disembowelled and mutilated. The RSPCA mounted an investigation but was unable to bring a prosecution because, despite some evidence, what had happened was not illegal.
The final case occurred on 13th April this year. Three dead foxes were found on the site of a fire at Cuxton Quarry in Kent. One of the foxes was positioned as though sitting up with its head turned. The fox had wire around its neck and had been half throttled. A vet later confirmed that at least one of the foxes had been burned alive. Again, because it was a wild mammal, no prosecution could be brought. Those are the kind of cases that we seek to prevent by the Bill. I have been given many more examples of that type of mindless cruelty. We do not aim the Bill at the legitimate activities of farmers and landowners but merely at those offenders.
There is a real need for the Bill so that such cases can be dealt with. I am confident that there is no one in the House who would wish such abuses to continue. I hope that any speakers who are anxious about the Bill's wording will at least endorse its aims. I commend the Bill to your Lordships.
Lord Renton: My Lords, it is always a pleasure to follow the noble Baroness. I sometimes agree with her, but not often on party matters. On this occasion I agree with her in part only. I must confess I shall have to read her speech because I have not had the advantage of examining all the authorities she mentioned.
First, I am against cruelty to animals. When I was invited to be vice-president of our local branch of the RSPCA I accepted without hesitation. But it is in the public interest that some animals should be killed. They are pests. They should be killed whenever they can be. I refer especially to rabbits, rats, mice, moles and foxes. I do not include hares. They are in a different category. That need to kill some mammals is one of the reasons why I have been, for many years, a member of the British Field Sports Society.
Therefore I am broadly in favour of the Bill. I am glad it will receive a Second Reading, as do nearly all Bills in your Lordships' House. I have however some serious misgivings as to whether, as drafted, it will achieve its intended purpose. Towards the end of her speech the noble Baroness was good enough to say that we may have to consider some drafting amendments. I hope that what I am going to say will be regarded as constructive, because those are the thoughts that I have in mind.
Unless the Bill is amended, it will have several unexpected results which are clearly contrary to the public interest, as I shall try to show. As there is no doubt that there will be a Committee stage, I will not weary your Lordships with too much detail, but perhaps I may mention some of the Bill's major defects.
Clause 1 creates a criminal offence of absolute liability, sometimes called strict liability. That is an offence where the prosecution does not have to prove the intention underlying the act which constitutes the offence, but may do so. It is a question of no criminal intent having to be proved under Clause 1. Even if a person kicks, beats, impales, burns, crushes or drowns a wild mammal accidentally or without intending to do it, or without intending to be cruel, it is assumed under the clause as drafted that that person is doing so cruelly.
In principle, we should not turn people into criminals when they have no criminal intent. Indeed in the many offences Parliament creates each year for one reason or another, it is very rare indeed for offences of absolute liability to be created.
If we had an all-night sitting, many examples could be given of the strange results of Clause 1 as it stands; I shall give just three. First, if one is walking over rough ground, say, in a wood where there is a great deal of undergrowth and one hits a rabbit with one's foot without knowing it is thereit might be a pregnant rabbit, or a rabbit that is simply hidingand injures it unintentionally, under Clause 1 as it stands that could be held to be kicking it cruelly. Therefore criminal intent would not have to be proved.
I turn to my second example. If one is burning a large pile of garden or farm rubbish and there is a rat, a mole or even a hedgehog underneath, under Clause 1 that could be held to be cruelly burning a wild mammal, even if one did not know that a wild mammal was lying there.
My third example is more familiar. If a lorry driver, or the driver of any motor vehicle in a stream of traffic, runs over a hedgehog, whether he kills it or wounds it and whether he sees it or not, that could be cruelly
In fairness to the mass of people in this country, whatever their way of life, Clause 1 must be amended. That can be done by adding the word "knowingly", or "intentionally", or "wilfully", which is a slight adaptation, to bring it into focus with the expression "cruelly".
Clause 2 is welcome because of its description of a number of circumstances in which it is to be assumed that no offence was committed under Clause 1. But, curiously enough, it refers to circumstances in which no offence would be committed anyway under Clause 1. For example, subsection (a) of Clause 2 refers to "taking" and that is not an offence under Clause 1. Subsection (e) refers to,
Again, Clause 1 makes no mention of the use of a snare or a trap. However, as Clause 2 would prevent many absurd and unfair prosecutions taking place it may be better to leave it in the Bill, although parts of it are unnecessary.
Unfortunately, in Clause 3 the word "wild" has been omitted before the word "mammal" where that word appears for the second time. That is, I think, merely due to a lack of caution. Unless the word "wild" is put in front of the word "mammal" where that word is used for the second time the Bill will apply to domestic animals which have either gone wild or were born in the wild. I do not believe that the noble Baroness and other promoters of the Bill have that intention in mind. One must mention, for example, that cats and dogs go wild, especially cats, and can do much damage to birds. Therefore, unless the word "wild" is inserted as I suggest in Clause 3 the clause will be outside the scope of the Long Title. That is not the way in which we legislate.
I have said enough to show that although the intentions of the noble Baroness and others in promoting the Bill are valid and should be supported, the Bill as it stands will not do. I remind your Lordships that ours is a revising Chamber. We have a serious constitutional duty to correct faults that we see in Bills which come before us. We may be correcting drafting faults; sometimes we have a duty to correct faults of substance because they can create a nonsense too. We shall fail in that duty if we do not amend Clauses 1 and 3. Having said that, I wish the Bill well.
Lord Houghton of Sowerby: My Lords, this is an historic Bill. By any standard this is a notable occasion in your Lordships' House. It is a measure of wide public importance, having a bearing on social conditions and the attitude of mankind towards the animal kingdom. I would not say that we have been waiting for the Bill for 100 years but it has taken 100 years to get to where we are. The top half of the Bill was passed in 1911 but the protection of that Act related only to animals which could be called "companion animals" and similar species. It left the animal in the wild to the tender mercies of whoever might wish to attack them.
We have, therefore, a special responsibility. We have been entrusted with a Bill that has passed all its stages in the House of Commons. What are we going to do with it? It is very important for the House to consider where it thinks its duty lies. One knows the turmoil in the House of Commons and in the country about matters relating to this Bill but which are no longer contained in it. Indeed, the problem that we had to dispose of before we could see any light of progress in this direction was constantly an obstacle in the way of protecting animals in the wild.
The noble Lord, Lord Renton, tells us which clauses need amendment. That makes me rather concerned as to what will happen to the Bill. We are at the end of a Session and we must ensureat least in my opinion we mustthat a Bill of this kind and this importance, having gone through the fire and brimstone of controversy in the House of Commons and which comes to us with common consent, is regarded with special care.
I remind your Lordships that all this comes to us every time through what is known as the Private Member's procedure. No government want to take care of these matters or to allocate a Minister to accept responsibility for them. These Bills are left to the good sense and determination of the Private Member who seeks to change the law because nobody else will do it. It is astonishing that the questions which are relegated to what a former Prime Minister described as a "private initiative" in matters of legislation involve great issues of deep concern and moral importance. We should consider how long it took to deal with the issue of abortion21 years. That was all dealt with under the Private Member's procedure.
We cannot amend this Bill in any sense which would require fresh consideration in the House of Commons. It worries me that that risk is still there. Should we not exercise a general forbearance and forego our critical role as we might employ it in other circumstances with meticulous care? I cannot say any more than that but all that we can usefully do with this Bill is to get it through unimpeded towards the statute book, because then we shall have put behind us a great deal of difficulty which has occurred in the past. We can then look at the
Therefore, I express anxiety about the future of the Bill. I believe that we should consider seriously the ancient Private Member's Bill procedure under which Bills are exposed to a kind of guerrilla warfare and sectional obstruction. All the knavish tricks known to politics and Parliament can be hurled at a Private Member's Bill. The amount of time spent by Parliament in that way is a disgrace because it is purely procedural.
What are the subjects which are relegated to private initiative? They are the subjects which no government want to touch and they do not want to touch them because they fear that they will not be able to get the Whips to control the vote. They do not want cleavages in the unity of the party brought about by subjects which are really not of commonplace political interest. But it is curious that the matters which go deepest in the public sensitivity are not politics at all in the concept of our procedures. They are the moral issuesthe behaviour and attitudes which one hears too little about in the elected Chamber and our own.
That is my message. It will be a shame if we prolong the disparity between the protection given to certain animals and the exposure of others to the predatory instincts of man. It has worried a great many people when they find that a gang of youths can start kicking a hedgehog around as though it were a football and the hedgehog has no protection under the cruelty to animals legislation.
Therefore, I make that plea. We shall wait a long time if we try to go over this ground again. I should not like to say what will happen if there is a new Parliament. It may be that conditions will be more favourable to change than they are in the present Parliament. Nevertheless, one cannot foresee all that will happen.
I congratulate my noble friend Lady Nicol, who had the honour to introduce this Bill in your Lordships' House, which she did with great skill and understanding. We owe it to the more desirable motives behind the Bill to see it through and otherwise to establish whatever relationships are possible to overcome the procedural difficulties. We are up against a timescale and, if we leave the Bill to fall at the end of the Parliament, we shall not only regret that but we shall be criticised strongly for allowing it to happen.
Lord Boardman: My Lords, this Bill causes me some problems. I have great sympathy for its objectives. Indeed, as the noble Baroness invited us to do when she introduced the Bill, I can endorse its aims; and I do that fully. I condemn, as the noble Baroness did, those examples of cruelty to wild animals which she quoted. They were horrid and I shall fully support anything that we can do to stop that.
The problem is that the Bill is poorly drafted. I must accept the criticisms of its draftsmanship which were made by my noble friend Lord Renton. I have some criticisms of my own but I shall not delay the House by giving them at any length. The Bill will provide a field
The noble Baroness said that cruelty applies only if the particular act is unnecessary. I shall refer again to that in a moment. The noble Baroness, when talking about one of the exceptions, said that it is "reasonable to assume". I am quite sure that I would share the view of the noble Baroness but unfortunately the Bill does not make that clear and would leave the interpretation to justices up and down the country who may have different views from hers or mine.
One of the examples given to us by the noble Baroness was that of the burning of heather. She said that it would be impossible to be sure that there was no wild mammal present at the time. The noble Baroness said that she believed that that was not intended to be an offence under the Bill. However, as I read the Bill, whether or not it was intended, it would be an offence. For that reason I have considerable concern about the Bill in its present form. As my noble friend Lord Renton said, it creates a strict liability. It is no excuse to say, "I didn't intend to do that"; indeed, it is a strict liability. That is a matter of fact, not a matter of law. I imagine that, on hearing such cases, magistrates throughout the country might take a different view of the matter on the interpretation of the facts to that put forward by the noble Baroness.
I emphasise the word "unavoidable". The interpretation of that must mean that an unavoidable attempt is an exception, but that "avoidable" is not part of an exception; in other words, an avoidable killing would not be an exception.
Let us take a further example of someone going into a barn with a big stick and seeing many rats. He may hit one of them and may or may not kill it. To my mind, that would be an offence under the Bill as it stands. My concern is that such cases which we in this House would consider not to be caught by the Bill would or could be so caught by some of those rather extreme groups throughout the country which operate under various animal rights labels and which would be looking for cases where they could prosecute or cause prosecutions to be brought.
The Bill causes me considerable concern. Indeed, the noble Baroness said that to establish cruelty one only had to show that whatever was donethe killingwas unnecessary. I believe that a killing that was unnecessary under the Bill would be interpreted as being a cruel killing.
Of course I accept the point made by the noble Lord, Lord Houghton of Sowerby that it would be a problem when so much work had been done on the Billand he carries out the intentions that many of us haveif it did not manage to get through. However, I believe that it would be a greater problem and, indeed, a failure of our duty in this House as a revising Chamber if we let it go through as a really bad Bill; in other words, a Bill that would cause massive problems throughout the country in the years ahead.
The Bill's intentions are excellent, but it could become a legal playground both for the legal profession and for those extreme and somewhat vicious groups of people who try to disrupt as greatly as they can the normal and proper conduct of many people. I believe that the good intentions in the Bill, as indeed in any other Bill, could be destroyed by bad laws. If it is not possible to amend it, I think that it would be a great mistake for it to go forward on to the statute book in its present form.
Lord Soulsby of Swaffham Prior: My Lords, the House must be most grateful to the noble Baroness, Lady Nicol, for introducing the Wild Mammals (Protection) Bill. It probably comes as a great surprise to many, certainly to me, just what little protection there is and has been against wilful and wanton acts of cruel treatment of wild mammals. It is appalling to learn of some of the horrendous acts that may be perpetrated against badgers, with hedgehogs being used as footballs or, indeed, foxes and squirrels being burnt alive. We must strongly applaud the intent of the Bill.
However, as other noble Lords have indicated, there are concerns. There is a concern that the Bill appears to be one of strict liability; namely, that the prosecution would not have to prove that a person had any intention to behave cruelly, but merely to establish that he had in fact done so. The exceptions in Clause 2 may go some way to ease some of those concerns, especially where wild mammals are injured or disabled inadvertently by lawful activities, particularly in farming.
Examples of the latter have already been mentioned; for example, the burning of stubble or heather and the inadvertent burning of animals in the process, the crushing of animals or their lairs by farm machinery, or the amputation of limbs or other body parts by mowers or combines. In such cases, it would be wanton cruelty not to permit the animal to die humanely. It would be cruel to permit an animal to survive for any more time than it would take to dispatch it.
However, would that act of dispatchfor example, with a heavy stick used two or three times to kill such an animalbe cruel beating as defined in the Bill? It is well recognised that an expeditious way of killing a rabbit or hare is to dislocate its neck with a single, sharp blow. It is also recognised in some legislationnamely, the Animals (Scientific Procedures) Act 1986that that is effective in animals up to a weight of one kilogram. Beyond that weight, more than one blow is possibly
But would such treatment include the definitions in Clause 1namely, "beating"or any other similar act in the process of tending to it so that it may be released? Those issues are concerns for various people.
Even though the Bill is laudable in its intent, there are areas where some detailed attention to definitions will be required to make it wholly acceptable, especially to those whose lives impinge, particularly on a daily basis, with wild animals. I have in mind those in agriculture and working on the land who, in my experience at least, are fully conscious of the need to treat wild mammals in a humane manner.
The noble Baroness, Lady Nicol, has eased some of my concerns. For that I thank her very much. However, it is clear that a few still remain. They have been identified by various speakers. Whether the remaining issues are of enough concern to risk the loss of the Bill, as indicated by the noble Lord, Lord Houghton of Sowerby, is indeed a fine point. But, in that respect, I must say that I am impressed by the statements made by my noble friend Lord Renton; indeed, I bow to his greater experience and knowledge in such issues and hope that he will possibly lead the way in any amendment that may be necessary.
Baroness Wharton: My Lords, I, too, should like to thank the noble Baroness, Lady Nicol, for introducing the Second Reading of the Wild Mammals (Protection) Bill. I am joint honorary secretary of the All-Party Animal Welfare Group. As such, I receive a considerable amount of mail on general welfare matters. It is quite clear to me that, right across the spectrum of our society, there is an enormous concern for the welfare of our animals, both domestic and wild.
I have heard a rumour in the House that there might be a concerted effort to kill the Bill. I have also gained the impression that some may think that the Bill under discussion is the one dated December 1994. As noble Lords know, Clause 2 of that Bill referred to dogs killing and injuring wild animals. However, as we know, we are not discussing that Bill tonight.
Had the original BillI have to say thisbeen before us today, I probably would have supported it even knowing that it could not have possibly won the support of both sides of either House, and would eventually have been lost through lack of parliamentary time. The honourable Member for Dumbarton has, in another place, worked extremely hard to find a compromise and it is this Bill, dated 17th July 1995, that we have before us today. As the noble Baroness has already outlined, this is a much amended version of the original with all references to dogs and hunting removed. I hope that that should make it more acceptable to the field sports lobby.
I add at this juncture that my mother hunted all her young life in the West Country. After she married and went to live in South Africa she continued to hunt but eventually persuaded her local hunt to switch to drag hunting. That was how I enjoyed my riding most winter weekends during the school holidays. Surely it is the thrill of riding to hounds rather than the kill at the end which is the more enjoyable.
What I find difficult to understand is Clause 2(e), which exempts from prosecution the use of traps and snares but does not define either. Having seen animals trapped by both these methods, all I can say is, once seen never forgotten. The deaths are never quick and painless and it is so often the job of RSPCA inspectors and veterinarians to destroy the animal as humanely as possible. Snares and traps are supposed to be checked at regular intervals but in far too many cases they are left unchecked for days. Sometimes it is ordinary members of the public out walking who come across snared animals often still alive and struggling. Even the dead ones are distressing to see. One does not need a vivid imagination to feel horror at the manner of their deaths. The running snare is still legal. I think it is a cruel method of capturing a wild animal. For myself I would like to see it outlawed.
The Protection of Animals Act 1911, makes it an offence to kick, beat or inflict pain or suffering on a domestic animal. Surely it is illogical that the same protection is not afforded to wild mammals. To my mind, cruelty is the same in either case and the law should not differentiate between the two.
RSPCA inspectors, and sometimes the police, are regularly called out to deal with wanton and deliberate acts of violence and cruelty against foxes, squirrels, hedgehogs and the like, knowing that they cannot bring the culprits to court. Many offenders just laugh and say they were having a bit of fun. What I find frightening is the total disregard that certain youngstersand, I hasten to add, some adultshave for the pain they inflict on animals. There needs to be much better education at a young age to teach children to respect and appreciate other forms of life.
The majority of people in this country insist that our wild animals enjoy the same protection as our domestic animals have and that offenders who deliberatelyI stress the word "deliberately"cause harm are swiftly dealt with by the courts. The time has come for parliamentarians to take note and act accordingly.
I would like to see this Bill on the statute book as soon as possible but I note the observations and the concerns of the noble Lords, Lord Renton and Lord Boardman. I hope that honourable Members of both Houses will not delay the Bill's passage through Parliament. There is much more that I could say but I will not detain the House further. This is half the Bill it originally was, but it is far better than no Bill at all. I
Lord Stanley of Alderley: My Lords, I support the object of this Bill. No one should be unnecessarily cruel to wild animals. I am grateful to the noble Baroness for all she has done to make sure that the Bill's objectives are clear, and for the way she has explained the purpose of the Bill and, more importantly, what the Bill is not intended to do. As she knows, I have written to her about my particular anxieties, which mainly concern agriculture. I am particularly grateful to the noble Baroness for her assurances which she gave in her opening speech.
However, like my noble friends Lord Renton, Lord Boardman and Lord Soulsby, I would like her to address the matter of strict liability. As I see it, the prosecution would not have to prove that the person had an intention to behave cruelly but merely to establish that he had done so. I am not a lawyer and I know that the noble Baroness is not, but that seems to me somewhat worrying. Valuable as it is to have the noble Baroness's assurances, which I hope my noble friend Lady Blatch will comment on in her position as Home Office Ministerperhaps in this case I consider her as the refereethose assurances are nothing like as good as they would be if they were put on the face of the Bill. However, to do that, as the noble Lord, Lord Houghton, said, would mean that the Bill would have to go into Committee, be amended, be sent to the Commons and then be sent back to your Lordships.
I believeI hope I am not wrong in thisthat the noble Baroness would not object particularly to the Bill being amended if it was clarified. I hope that agreed amendments could go through your Lordships' House at great speed. However, the problem is whether the Commons would be able to give time to debate your Lordships' amendments and agree them. If they did not, the Bill would be lost. I, and I understand many of your Lordships, would regret that greatly. I will go further and say that I think it is probably wrong for your Lordships to do that for a number of reasons which I shall not bother to spell out.
The dilemma which I and your Lordships face is whether to accept the noble Baroness's assurances andI hate to say this- -trust to luck that they carry weight in the courts or to amend the Bill and possibly lose it because of lack of time. Without any doubt whatsoever the best way forward in my opinion is for the Bill to be amended and for it to be returned to the Commons and come back so that we can get it on the statute book preferably this Session and certainly early in the next one. However, that would require much help from all parties concerned and also the Government. I
Lord Willoughby de Broke: My Lords, like other noble Lords who have spoken tonight, I, too, support the principle behind the noble Baroness's Bill. I believe in the principle that wild animals should be afforded protection against the cruelties which she so graphically described. However, there are ambiguities which I believe need to be addressed, as the noble Lord, Lord Renton, and my noble friend Lord Boardman have mentioned. I do not think it is satisfactory as it stands. I refer to certain of the definitions. In spite of what the noble Baroness has said, I do not believe that the terms "cruelly beating" or "cruelly crushing" are satisfactory and I believe that they could be used on occasions to prosecute farmers for perfectly ordinary activities, or activities which may be beyond their control.
I believe that the necessary exemptions in Clause 2 would be much clarified if the distinction between cruelty and suffering were properly defined. Repeatedly and in varied surroundings, including Parliament and the courts, "cruelty" is used where "suffering" should be used. The difference is that "cruelty" involves volition whereas "suffering" does not. It follows that the establishment of cruelty depends on establishing an intention to inflict suffering, or delight in, other persons' or animals' suffering. Two levels of proof are required: first, that suffering (incidental, accidental, unnecessary, or necessary) occurred; and, secondly, that there was an intention to inflict such suffering, for whatever motive. I wonder whether a definitions clause might usefully be added to the Bill.
I am at one with other noble Lords who have asked for a Committee stage so that the doubts which have arisen may be addressed and the Bill amended. Like my noble friend Lord Stanley of Alderley, I hope that that can be done speedily. I hope that a Committee stage would allow the Bill to be amended so that we can effectively protect wild animals from the horrors that have been described without criminalising normal rural and agricultural activities.
Lord Mancroft: My Lords, I have great pleasure in welcoming the Bill. As deputy chairman of the British Field Sports Society it is incumbent upon me to say that the society is as firmly behind the principle of the Bill as all noble Lords who have spoken this evening. We are all concerned about animal welfare. Had the Bill been introduced as it was originally drafted I and many noble Lords on all sides of the House could not have supported it because of the provisions it contained that affected field sports. Those provisions were sensibly dropped in another place, and I understand that the Bill's more limited and worthwhile aim is to deal with those particular acts of dreadful cruelty which we would all like to stop.
It may be useful to look back to see what has brought about the Bill. The Protection of Animals Act 1911 makes it an offence to be cruel to domestic animals or to wild animals, but only when they become captive. It is argued that that leaves a major lacuna in the law and that wild animals deserve the same protection as their domestic counterparts. The argument is a seductive one. At first sight there seems no reason why wild and domestic animals should not be treated in the same way by the law, particularly when one considers the horrific cases of cruelty which have been inflicted and which the noble Baroness mentioned in her opening speech. However, closer examination reveals that the idea of equal protection in law is flawed, for a number of reasons. That certainly does not mean that wild animals should go unprotected or that the Bill is wrong in principle. However, we need to consider whether the level of protection is the right one.
It is obvious that wild animals cannot receive exactly the same protection as domestic ones. First, man has dominion over and responsibility for domestic animals. Not only may we not actively be cruel to our cats and dogs, for instance by beating them excessively, but acts of omission may also add up to cruelty. We must feed and water our dog or cat or rightly face the consequences. However, it is difficult to see how any of us can be held legally responsible for the activities of wild animals until we come into contact with them.
Secondly, society does not treat wild and domestic animals in the same way. The logic of the argument put is that a wild rat should be protected in the same way as a pet rat. But if wild rats get into our houses we call in someone who usually poisons them. By contrast, if a pet rat is ill we take it to the vet where, if it needs to be put out of its misery, it will be administered anaesthesia. An attempt to poison the rat to save the vet's fees would be a crime under the Protection of Animals Act. Therefore, it becomes obvious that the different treatment of animals under the law is not a major deficiency but is a reflection of the necessarily different treatment of wild and domestic animals.
If we look at the range of wild animals that would be affected by new protection of one kind or another we see that most of those animals need to be controlled. There might be argument about whether a form of control is acceptable, but there ought to be common ground that to some degree or other deer, foxes, rabbits, mink, or even sometimes hares, may need controlling. The need to exercise that control is one of the compelling reasons why wild animals cannot be protected in the same way as domestic ones.
It is often alleged, as my noble friend Lord Soulsby mentioned, that wild animals are not protected under the law. That is not true. Parliament has progressively outlawed particular forms of pest control when it was shown that they were unnecessary or cruel. If we look at foxes, for instance (which is useful because it is often claimed that the fox is the least protected of our mammals), poisoning was outlawed under the Protection of Animals Act 1911. Under the Pests Act 1954 traps have to be approved by the Ministry of Agriculture, which in 1956 removed approval for the appallingly cruel gin trap. Gassing of foxes was effectively
Some wild mammals are, or were originally, protected on grounds of rarity. That is a case where blanket protection is appropriate, and there is no argument about that. Badgers were protected in 1973, otters in 1978. But those animals were given blanket protection of a different kind, extending to their habitats as well as to the animals themselves, for very different reasons. Again, there was political consensus about the measures taken.
The point of difficulty arises in the grey area between when an animal is wild and when it is captive. The courts have interpreted the definition of "captive" narrowly, so that in the words of the leading case in the Court of Appeal, Rowley v. Murphy,
That interpretation is necessary if any form of pest control is to be conducted, because at some stage it will involve an act of force against a wild animal. If, for instance, a rabbit was held to be captive at the point when it was removed from a net and its neck broken, that perfectly humane and normal form of rabbit control could become an offence.
The narrow interpretation of captive has led some magistrates' courts to decide, for example, that kicking a hedgehog is not an offence. Plainly we would all rather that such acts were not permitted by the law, but we need to find ways of dealing with such cases while permitting lawful country activities.
We should keep the situation under the existing law in perspective. First, the courts must make sensible use of the existing law. One case has been cited where a magistrates' court held that nailing a squirrel to a tree was not an offence because the squirrel was not captive. Frankly, many of us consider that that case was wrongly decided. If an animal is nailed down to something it is obviously suffering more than a temporary inability to get away. Secondly, these are not common cases. It is obvious to us all that hedgehog kicking, fortunately, is neither a national sport nor a great problem. Indeed, it is arguable that the kind of person who throws live hedgehogs on to fires is unlikely to be deterred by the criminal law. However, that does not mean that Parliament should not try to deal with the problem. But in so doing we must keep a sense of proportion, and in particular ensure that legitimate activities are not curtailed.
As amended, the Bill makes it an offence to cruelly kick, beat, impale, burn, crush or drown a wild mammal. That provision was the result of doubtless well-intentioned but undoubtedly eleventh-hour agreement in another place. It was intended to deal with peculiar acts of torture, such as nailing a live squirrel to a tree or throwing a hedgehog on to a bonfire. The British Field Sports Society played a part in that agreement, welcomed the Bill and supported it at Third Reading. We want to see it on the statute book; we said so at that time and we say so again today.
However, all sides must admit that the amended clause was drafted rather hastily. At that time we did not have the benefit of detailed legal advice. Over the summer a number of anxieties were put to us, which have been mentioned by noble Lords this evening, from farmers, field sportsmen and others about the possible effects of the Bill. We hoped to reassure them, but we felt that it was incumbent upon us to take legal advice. We received two separate legal opinions; from Peter Birts QC and Anne Rafferty QC, the Chairman of the Criminal Bar. Much to our alarm, and to our disappointment, both opinions stated that the Bill could put ordinary farming, pest control and sporting activities at risk.
They gave examples of activities which could be put at risk, some of which have been mentioned this evening. More than one blow to the neck of a rabbit could be interpreted as "cruel beating". Pouring corn on to a rat in a grain silo could be "cruel crushing". A rat, rabbit, hare or fox could easily be "cruelly crushed" in the jaws of a dog or hound.
As we have already discussed this evening, a person would not have to intend cruelty. As presently drafted the offences appear to be ones of strict liability. It would be for the courts to decide whether cruelty was caused. In doing so they will have to ask whether the activity was necessary. While countrymen may understand the necessity of certain farming activities, field sports and pest control, those views may not be shared. The problem is the uncertainty caused.
I accept entirely that the noble Baroness, who I understand has seen both opinions, does not intend any of the scenarios that I have set out. But equally I hope that she will accept that we must respond to the independent advice given to us. To take legal opinion and then to ignore it would be extraordinarily irresponsible. I and my colleagues in the British Field Sports Society now find ourselves in an extremely difficult position. We would like the Bill; we wish to seek agreement. The chairman of our society, Dr. Charles Goodson-Wickes, who secured agreement with the promoter of the Bill in another place, is particularly anxious that I make that clear to your Lordships this evening. But it seems that some amendment will be necessary, perhaps focusing on including a mental element in the offence and creating careful new defences for pest control and farming operations.
It is of concern that parliamentary time for this Bill is desperately short. But I do not believe that your Lordships can abdicate the responsibility as a revising Chamber to put legislation right. Perhaps I may ask noble Lords to throw their minds back to the speed with which the dangerous dogs legislation went through this House. That type of legislation rushed through is always
I hope not. I have to say that the Bill's promoter in another place could have secured agreement at a much earlier stage. I say this to the noble Lord, Lord Houghton, and the noble Baroness, Lady Wharton. He sat on the Bill for three-and-a-half months before seeking agreement on it. He chose to leave it to the last possible moment. That delay now places all of us in a very difficult position. If the Government could find time to help the Bill on to the statute book, that would be widely welcomed. But if, as I fear, that is not possible, I earnestly hope that all sides will agree to a Bill to be introduced early in the next Session. But we cannot allow bad Bills on to the statute book.
Only two of the verbs contained in Clause 1 are to be found in legislation which protects domestic animalsthe Protection of Animals Act 1911. I refer to "beat" and "kick". It may be questioned where the others came from, and why. Regrettablyand I mean no disrespect to the Members in another place whose intentions were goodit appears that the clause was cobbled together in a hasty corridor deal, creating a kind of shopping list of criminal offences. A particularly striking example is the verb "to crush". The reference was inserted at the insistence of the Labour Party's animal welfare spokesman, Mr. Elliot Morley, on the grounds that motorcyclists should be prevented from deliberately running over hedgehogs. Is it seriously thought that the Bill now has such an effect? How is the law to be determined between a rider who accidentally crushes a hedgehog and one who does so deliberately? Absurdities have been created. I fear that, however well-intentioned the agreement, this is no way to legislate, particularly when it risks making criminals out of presently law-abiding citizens.
I am particularly cautious about the possible uses to which the new legislation could be put in view of the animal rights groups, as my noble friend Lord Boardman said. As the noble Baroness, Lady Nicol, suggested, were the Crown Prosecution Service alone to be able to launch prosecutions in the public interest, our concerns would be diminished. But the animal rights groups such as the League Against Cruel Sports and, sadly, now the RSPCA have taken out numerous private prosecutions, aware that even if the result is an acquittal, discharge or nominal fine, the public relations impact of the prosecutions still makes them highly desirable. Those are not reasonable prosecutions. The recent legislation to protect badger setts has been used to this effect again and again, despite assurances that were given during the passage of the Bill through both Houses.
It is for those reasons, despite my support for the aim of the Bill, that I must take seriously the advice that we have received and consider the need for amendments. I have no wish to limit its ability to deal with the dreadful acts of cruelty against which I know it is aimed. But it
But imprecise legislation can and does affect targets other than those at which it is aimed. I hope that the consensus which was belatedly constructed in another place will remain intact because a controversial Private Member's Bill will never get on to the statute book. I believe that we are nearly there. I am quite sure that if we all work together we can produce a Bill which will be a great step forward in the promotion of animal welfare; but we are not quite there yet.
Lord Beaumont of Whitley: My Lords, if the Bill had come before your Lordships' House in its original form, I should be making a long speech, possibly not from the Front Bench but from the Back Bench, although my party as a whole is committed to opposing many of the more cruel hunting sports. I should have managed to annoy probably everyone on both sides of the arguments because I have spent something like 40 years thinking about this rather difficult problem, ever since I used to go hunting with the noble Lord, Lord Dacre, in the Bicester countryside during the war.
However, we now have a Bill which is manageable, is agreed, and to which every Peer who has spoken has agreed in principle. It is quite clear from the debate this evening that the future of the Bill depends on whether amendments, which I believe everyone agrees are probably needed, are so important as to imperil the progress of the Bill through Parliament this Session.
Having listened to the argumentsand to most powerful ones deployed by the noble Lord, Lord MancroftI am not convinced that it would be that bad a Bill. The noble Lord, Lord Boardman, said that if it were a really bad Bill we should not agree it. I entirely agree with him. I have seen enough short, badly drafted Bills passed through your Lordships' House in the past 25 years to know how difficult that can be. However, I am not totally persuaded by the arguments that I have heard. I remain of the viewI believe that my party does so toothat the Bill ought to be dealt with and amended if we possibly can. Most noble Lords are waiting to hear whether the noble Baroness, Lady Blatch, can give us any comfort as to how we might be able to obtain what almost all of us in the House want.
Baroness Mallalieu: My Lords, my noble friend Lady Nicol has in the past done many services for the environment, birds, wildlife and conservation. Her record on those issues is, I believe, universally admired on all sides of your Lordships' House and far beyond Parliament. In introducing this Bill to provide protection
Support for the principle of the Bill has come from every side of the House. We are agreed that there can be no justification for a loophole in the law continuing to exist which exempts a non-captive animal from legal protection against deliberate cruelty. As my noble friend Lord Houghton of Sowerby said, the closing of that loophole has been a long time coming. That, in part, must be because the measure has so often been combined with other more controversial measures and has therefore failed. Perhaps I may pay tribute to the honourable Member for Dumbarton in another place for making the concessions and the changes which have now permitted the Bill to come before your Lordships' House.
From these Benches, the intention of the Billnamely, the criminalisation of deliberate acts of cruelty towards wild mammalsis strongly supported. We shall do all we can to ensure that those intentions are translated into law as soon as possible. While no noble Lord has spoken in disagreement with the view I have just expressed, a considerable number of your Lordships have expressed serious reservations about the present drafting of the Bill. As my noble friend Lord Houghton said, it is unfortunate, to say the least, that it comes to the House at the 11th hour before the end of the Session.
Second Reading is perhaps not the time or the place for a detailed analysis of the clauses of the Bill, but some of the matters which have been raised by noble Lordsin particular the noble Lord, Lord Renton, in relation to Clause 1cause me as a criminal lawyer great concern. The Bill is silent as to mens rea. An intention to behave cruelly need not be proved. The offences created consist in doing the forbidden acts or causing or procuring or permitting them to be done, so, as others have said, the Bill appears to create offences of strict liability. As I understand it, the word "cruelty", according to the case law and the case to which the noble Baroness referred, Barnard v. Evans, means a deliberate as opposed to an accidental act which causes unnecessary suffering.
Perhaps I may give an example of how I am afraid Clause 1 might operate. I am walking my dog and I let it off the lead in a place where there are rabbits about. It chases a rabbit into a pond and the rabbit drowns. Under the Bill as drafted I have caused the rabbit to drown as a result of my deliberate act and it has suffered unnecessarily accordingly. There is no defence that I can see to avail me under the Bill as it is drafted. The suffering to the rabbit was avoidable. It was the result of my action, and if someone chooses to prosecute me, whether it is through the Crown Prosecution Service or whether it is a private prosecution, I shall be guilty of a crime.
Other noble Lords, in particular the noble Lord, Lord Soulsby of Swaffham Prior, have referred to other features which troubled me, and still do, despite the reassurance which my noble friend has helpfully given me in relation to the effect on farming and pest control. I am troubled by Clause 2(a) which appears to provide a defence to someone who,
an animal at the time he is apparently taking it in order to tend it and care for some disability which it suffers, with the intention of then releasing it when it is no longer disabled. The situation posed by that defence is inconceivable. It may be said that an illusory defence of that kind does no harm, but it is precisely additions of that kind to Bills of this nature that I as a lawyer know very well can later create considerable difficulties of interpretation.
I am also troubled about the uncertainty of other parts of Clause 2. If I have to decide whether I shall dispatch an animal which seems to be injured, I have to stop and ask myself whether there is a reasonable chance of the animal recovering. If I get it wrong, I may not have a defence under the Bill. Similarly, the unavoidable killing of a wild mammal is a highly subjective matter. It may seem to me to be necessary to kill the rat in my barn, but there may be others who take the view that I could perfectly well deal with it by opening the doors and shooing it out. There is an uncertainty which troubles me greatly in the present drafting.
One point which has been raised tonight is not one which occurred to me, and I disagree with the view expressed by the noble Lord, Lord Renton. It concerns the Long Title of the Bill and Clause 3. That does not seem to me to create any difficulties.
But that said, I believe that it is possible to produce a good, clear, precise and short piece of legislation to deal with the target which concerns us all. It could be done relatively easily by a small number of amendments. As my noble friend Lord Houghton said, this House has been put into an almost impossible situation. It is being pressurised to return legislation to the other place which it has not been able properly to consider because of lack of time and under threat of losing the Billwhich we all want to see in some form on the statute book. It seems to me wholly wrong that the House should be used as a rubber stamp. I am sure that we would all be anxious to avoid that.
I understand that the promoters of the Bill in another place took extensive advice on the drafting from the department of the noble Baroness, Lady Blatch. If, as appears to me and to others who have expressed their views tonight to be the case, there are flaws in the drafting which could and should have been corrected before, I am bound to say that the Home Office must bear heavy responsibility for those defects. By agreement and consultation elsewhere they could and should have been sorted out before the Bill came here. I say that not, I hope, in a discordant spirit, in view of all that has been said by way of agreement tonight, but the Home Office has some past history in recent years of producing bad legislation. I have only to cite the Dangerous Dogs Act 1991 in support of that argument.
The dilemma has been put to us squarely by the noble Lord, Lord Stanley of Alderley. If noble Lords feel that the measure cannot be returned to the other place without amendment, I hope that in view of the history of the matter, the noble Baroness will do all she can to make sure that time is made available to ensure that the amended Bill reaches the statute book. It is within her power to do so and we on these Benches will do all we can to assist. No oneI repeat no onewants the Bill to be lost.
There is one matter to which I wish to refer in conclusion in relation to the history of the Bill before it reached this House. It has been estimated that something of the order of £2 million has been spent by three organisations anxious to see the original Bill reach the statute book: the RSPCA, the League Against Cruel Sports and the International Fund for Animal Welfare. It has been estimated that approximately half of that sum was spent in direct lobbying of Members of another place, with the printing of personal letters addressed to them by constituents, and the other half on advertising. Some of that advertising by the International Fund for Animal Welfare has been subsequently condemned by the Advertising Standards Authority. One advertisement in particular compared those who engaged in field sports with a well-known mass murderer.
That money had presumably been given by members of the public, both here and abroad, anxious to see real improvements in animal welfare. The Bill which is before the House, the principal aims of which have total support across the board, could have been produced without any of that expenditure. Is it, I ask, too much to hope that in the future the large sums of money given by members of the public for animal welfare will be used in ways which will bring about a real improvement in those areas in which, I think we can all agree, it is desperately needed and in which it could be achieved?
I have absolutely no difficulty in providing three quick suggestions. Millions of animals are slaughtered every year in this country, yet we have no proper training qualification requirement for slaughtermen. Animals are injured on our roads daily and large transporters with sheep, cattle, horses and pigs overturn in accidents. The provisions for dealing with those casualties are woefully inadequate. There are often long delays. Some of our livestock husbandry methods are wholly unsatisfactory, in particular those in relation to poultry.
So much is needed. So much could be done by co-operation. Surely this is the way forward for animal welfare. I hope that that co-operation will start tonight with the speech that the noble Baroness is about to make. I hope for some indication from her that this Bill can, first, be made into a good Bill in this House; and then that it may be given time in another place so that it may reach the statute book as soon as possible.
The Minister of State, Home Office (Baroness Blatch): My Lords, the Bill that is before us today completed its Committee, Report and Third Reading stages in another place in the course of three consecutive days immediately prior to the Recess. That was perhaps in keeping with the somewhat unusual course that consideration of the Bill had taken in that House.
The Bill's sponsor, on introducing the Bill in another place, indicated that his primary intention was to outlaw field sports. Subsequently, he chose to drop the contentious clauses relating to hunting and to the introduction of a licensing regime for the use of snares and to concentrate instead on outlawing a range of cruel
Noble Lords will be aware of the Government's neutrality on the issue of field sports. We have maintained this line throughout the passage of the present Bill, making clear at the same time that we could not support provisions which might affect the use of established forms of pest control and farming practices.
I understand that discussions between the Bill's sponsor and other interested parties led to the amendment of the Bill into the form which appears before your Lordships today. It now seeks to outlaw certain specified acts committed "cruelly" in respect of wild mammals but it contains a number of exemptions, including specifically for pest control measures.
The Government's understanding in the summer was that all Members of the Committee which considered the Bill in another place, including those who specifically support the preservation of field sports, regarded the Bill as acceptable. That is to say, there was general agreement that the Bill filled a recognised gap in the protection afforded to wild mammalsthe Protection of Animals Act 1911 applies only to captive and domestic animalsbut did not affect either pest control or field sports.
We have heard from many noble Lords, but in particular from my noble friend Lord Mancroft, that the views of the supporters of field sports have changed on this latter point following legal advice they have received which suggests that field sports may be caught by the formulation in this Bill. Those concerned on this point must form their own conclusions and decide what the appropriate reaction to the Bill before the House should be. The Government, as I said, have been strictly neutral on the principle of field sports, and that will remain our position.
My noble friend Lord Stanley referred to concerns that he had raised with me on the part of farmers. My noble friend Lord Mancroft also expressed concerns about pest control, as did other noble Lords. The Government are satisfied that nothing in the Bill would prevent the continuation of normal humane methods of pest control. I am unable to comment on many of the technical points that have been raised in relation to this Bill. Nor am I able to help the noble Lord, Lord Beaumont, who asked specifically how amending this Bill would impact on the timetable. That is not a matter for me; it is a matter for the other place.
Baroness Nicol: My Lords, I may not have been kicked, beaten or impaled, but I feel distinctly crushed. We have a problem. I can quite understand the anxieties that were raised by a number of noble Lords.
First, I have not seen the legal opinions to which the noble Lord, Lord Mancroft, referred. Even if I had seen them, I doubt whether I should have been able to cope with them in the time available. I hope to see them before we proceed much further.
I am very worried about the timetabling, mentioned by the noble Lord, Lord Houghton. I agree with the noble Baroness, Lady Wharton: perhaps half a Bill is better than no Bill at all. But it has to be half a Bill that will work. We must therefore try to discuss with the Government what measures can be taken if we feel that the Bill must be amended. I am still hoping that that can be resisted. If it cannot, I hope that we can discuss with the Government how they can help the Bill forward.
Along with my noble friend Lady Mallalieu, I feel that the Home Office must bear some responsibility. I do not think that the corridor conversations mentioned by the noble Lord, Lord Mancroft, would have been engaged in. But there is no doubt that the Home Office was involved in the Bill's drafting. If it turns out to be as flawed as some Members of this House believe, then there is responsibility on the Home Office to help bring the Bill forward. I believe that that can be done. We have time. I understand that we are to be here until 6th November, but I am not aware of the position in the other place. I know that as a Private Member's Bill the measure has very little chance. However, there is nothing to prevent the Government picking it up and taking it forward, with any necessary amendments, as a
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