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Lord Kimball moved Amendment No. 1:

Page 1, line 16, at end insert ("but not to any gutter or ditch of, or in or adjacent to, any road or path").

The noble Lord said: In moving this Amendment, perhaps I may speak also to Amendment No. 2. It deals with the same point—where a ditch or a gutter is not available. The object of the first amendment is to ensure that it is not an offence for a dog to spend tuppence in a ditch or a gutter beside a path or a road in an area which has been designated by a local authority as an area in which your dog should not spend tuppence. The second amendment seeks to ensure that where a ditch or a gutter is not available, the local authority should provide within the area of land that has been designated a suitable receptacle into which the offending dog mess can be put. That is the point of both the amendments. I beg to move.

Lord Simon of Glaisdale: I am very glad that the noble Lord, Lord Kimball, has moved his amendment. This is a very far-ranging—in some ways extraordinary—Bill. It creates an offence of strict liability. In other words, the owner of a dog may be liable to a swingeing fine even though he knows nothing of the offence and is in no present position to prevent it.

The fouling of sidewalks by dogs is extremely unpleasant and unhygienic. If we had any doubt about that we would have been persuaded by the clear and attractive arguments which the noble Earl put forward in moving the Second Reading of the Bill. However, as I said, the Bill goes very far indeed. It centralises the offence in place of it being the subject of by-laws. Not only that, it creates a very wide offence, leaving it to the Minister, with exiguous parliamentary control, to make exceptions. That is the old dispensing power of the Crown which was found so objectionable in Stuart times and was finally disposed of in the Glorious Revolution and the Bill of Rights.

As I say, the Bill makes the fouling by dog faeces of any land open to the public an offence. The Committee may believe that we have much too much legislation in

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any event and that we have been creating new criminal offences every Session that we have had in recent times. That is sufficient to make the Committee at any rate wish to scrutinise very carefully these kinds of provisions. The noble Lord, Lord Kimball, has moved this amendment at a very late stage in the Session—the Bill comes before the Committee at a very late stage—and that may weigh with him in deciding whether to ask your Lordships to divide on the matter. But that does not excuse us from passing the measure through on the nod without any question.

This is in fact a government Bill although it was moved by a Private Member in the other place and by the noble Earl himself in your Lordships' House. It bears all the marks of a Whitehall Bill, which is handed to a Back-Bencher who has been lucky in the ballot. As I say, it goes extraordinarily far in creating a very wide offence subject only to a dispensing power.

There is one other initial matter which I should mention before we come to the specific proposal in this amendment. It was raised at Second Reading by, I believe, the noble Viscount, Lord Falkland; namely, its effect on foxhunting. It is the local authority which is given power under this Bill. We have had examples of local authorities inimical to foxhunting who have used powers in order to hamper that country sport. That has been done in the West Country. The decision was challenged in the High Court. The local authority appealed and failed in the Court of Appeal.

As I have said, this measure could be used—I do not doubt that it would be used—by a local authority unfriendly to foxhunting in order to allow the hampering of that country sport. The recent White Paper on rural England, which we are to debate next week and which has been very favourably received, expressly welcomes country sports. If we are to see foxhunting abolished or suppressed, it should be done openly by Act of Parliament and not by the back door through the misuse of powers under Bills such as this.

There is one other preliminary matter that I wish to mention. As the noble Earl explained at Second Reading, this Bill centralises powers that at the moment are exercised in some cases by by-laws, so that the whole matter is governed by a Whitehall Act of Parliament. Is it altogether right to assume that central direction by Act of Parliament is superior to a by-law? A by-law is a local law of the locality. It is a local authority which makes the by-law and which knows local conditions. This Bill takes account of and enforces a criminal offence, notwithstanding the wide variety of local conditions. Having given a Second Reading to this Bill, albeit in circumstances to which the Salisbury convention does not apply, we are bound to accept that by-laws shall be abrogated in place of this measure. That is an additional reason why we should regard this Bill with close scrutiny.

The recent White Paper on rural England drew attention to the desirability of local authorities, not least parish councils, having powers in the locality. After all, a by-law is a legislative subsidiarity. One of the most notable achievements of the Prime Minister at

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Maastricht was getting the principle of subsidiarity written into that treaty. Subsidiarity, like charity, begins at home. We should apply it domestically.

Having said that, I turn to the amendment of the noble Lord, Lord Kimball. That excepts defecation in a gutter or a ditch. Many well-trained dogs are trained to defecate in gutters and ditches. They are channels for collecting rainwater and sweeping away waste products with it. Surely, that is a very reasonable exception. I hope that the noble Lord will accept the amendment but, as I say, if he does not, he will need to give some cogent reasons why defecation in a gutter or ditch should be a criminal offence committed by the owner of a dog who may know nothing about the committal of the act of defecation and be in no position to prevent it. He will then be liable to a fine of £1,000 under this Bill. Under those circumstances I welcome and support this amendment.

4.15 p.m.

Lord Campbell of Alloway: Somehow or other, we seem to have got on to foxhunting, the abrogation of by-laws and some serious constitutional problems. I do not believe that any of those are relevant to this discussion. I hope that the noble Lord will be able to accept this amendment. It relates to one aspect of this Bill brought from the Commons. That aspect has to be seen in the general context of the problems arising, some of which are comprised in Amendments Nos. 2 and 3 of the Bill.

In many respects, the common law has for a long time recognised the absolute liability of owners for certain antics of their animals. Although a dog may have one bite—unless it is one of the dangerous dogs (as defined by statute) of the noble Lord, Lord Houghton of Sowerby—it may not have one defecation within the meaning of Clause 1(1) without exposing

    "the person who is in charge",

who is, in fact, not in charge, to prosecution by reason of the presumptions in paragraphs (a) and (c) of Clause 1(6) of what I call "the dirty dogs Bill".

My noble friend Lord Kimball has asked me to have a look at the Bill and the amendments. I assure the Committee that no question of payment arises—although a dram or two might not be unacceptable, but if it were a bottle or a hogshead, that would have to appear on the proposed register. Will not that become a total nonsense for your Lordships' House?

Reverting to the amendment, I wonder whether my noble friend the Minister has ever lived in Kensington in the vicinity of Kensington Palace and whether he has ever owned a Chow dog. If he has, he will know that there is a secret meeting of Chow dogs every morning—or there was about 10 years ago. The Chow dogs leave their homes and cross the roads, having learned to do so, and then meet together in a circle (more or less) in Kensington Gardens. It is not so easy to identify individual Chow dogs because they do not take kindly to anyone handling their collars or to whatever else their identification is fixed, and they all look alike. If my noble friend were to say, "Why not keep the wretched dog at home?" I should say, "Just try keeping a Chow

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dog at home". It seems to me that this is a somewhat unrealistic Bill in practice and that imposing a level 3 maximum fine is assuredly making a mountain out of a molehill.

Lord Lucas: I shall confine myself to Amendments Nos. 1 and 2 which, if I understand my noble friend correctly, we are to discuss. We are not sympathetic to either of the amendments. Amendment No. 1 would exclude any gutter or ditch from land to which the offence of failing to clear up after one's dog applies. In the past it was considered acceptable for dogs to foul the gutter. Indeed, going further back it was acceptable for humans to foul the gutter. We believe that that is no longer the way in which people think. Those of us who have lived in central London for any length of time will have experienced much discomfort from finding that dogs have been in the gutter before us.

Furthermore, we do not think that it should be forbidden by the Bill for a local authority to outlaw defecation in a ditch. Dog faeces which are deposited on dry land are disposed of quickly and efficiently by invertebrates. If disposed of in a ditch, they will dissolve, cause eutrophication and destroy the wildlife in the immediate vicinity. It is generally a much less ecologically acceptable means of disposal. We do not believe that the Bill should require local authorities to exempt defecation in ditches if they feel that that would be undesirable in the particular circumstances.

Amendment No. 2 places a requirement on local authorities to provide bins for the disposal of dog faeces on designated land. We are not sympathetic to that amendment. Under the dog fouling by-laws, there has never been a requirement to provide bins. The dog faeces are the owner's responsibility, not the council's. My noble friend would presumably not seek to argue that it is alright to drop litter if there is no convenient litter bin. We think that the same argument applies to dog faeces. The adoption of the amendment would force local authorities to bespatter town and country with dog-mess bins. We do not find that prospect financially, visually or nasally acceptable.

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