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Viscount Allenby of Megiddo moved Amendment No. 3:

Page 1, line 18, leave out ("3") and insert ("1").

The noble Viscount said: I was not able to speak on Second Reading, but I accept the need to rationalise the law on dog fouling and, above all, to promote responsible dog ownership. The Bill makes it an offence to fail to pick up dog excrement in a designated area. The purpose of the amendment is to lower the proposed maximum fine set at level 3 (currently £1,000) to level 1 (currently £250).

The amendment has been tabled because it is felt strongly on both sides of the Committee that the fine is absurdly high for the gravity of the offence and in relation to other offences which it effectively devalues. For example, it is the same maximum fine as that for kerb crawling, causing harassment, alarm, or distress, cock fighting, failure to keep a dangerous dog under control, throwing missiles or chanting racist abuse at a football match, placing a wire or rope across a highway, throwing stones or missiles at a train or killing an animal with a crossbow or automatic weapon. It is a higher fine than that for vagrancy, breaking up a public meeting or animal offences such as failing to inspect traps or selling a pet to a child. We consider that the maximum fine should be at level 1 on a standard scale, with a maximum fine of £200.

It has been suggested that doubling the £500 maximum fine allowed under the by-law system is justified because it brings dog fouling into line with the provisions of the Environmental Protection Act for litter offences. While we may be dealing with an aspect of our environment, we are not dealing with litter but a natural function of our dogs. Littering is a flagrant and intentional abuse of the environment, while it is not so clear that the same is true of dog defecation. As W. S. Gilbert said in "The Mikado":

I beg to move.

Lord Campbell of Alloway: I briefly support the amendment, largely for the reasons that I have already given. There must be a proportionality about punishment. Here we are dealing with an absolute liability or a strict offence. That is why I bored the Committee with the Chow dog secret society in Kensington Gardens. The owners are simply not there; they are not in charge. That presumption works harshly. I hope that the Minister is able to accept the amendment which in a situation of strict liability for a first offence must surely be sufficient.

Lord Clifford of Chudleigh: This is a very sound amendment. There are two or three points which the Committee may wish to consider. First, anybody whose dog may have committed the offence could report

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someone else to avoid paying the fine. Secondly, £200 is possibly more acceptable to a lot of people's pockets than £500. Finally, there is something called a "threat". Someone may see another person's dog defecating and say, "I am going to report you". The person whose dog has defecated could turn around and say, "Right, I am going to smash up your car. I am going to break your windows". There are many aspects to be considered. This whole legislation is being rushed through far too quickly. I think this is a very good amendment.

Lord Campbell of Alloway: I hope that the Minister will treat the last contribution of the noble Lord as wholly irrelevant to this discussion.

4.45 p.m.

Lord Lucas: We do not feel that level 1 is a suitable level for the fine in this case. Indeed, we do not feel that level 1 is suitable for any new offence. It is not being proposed or thought of currently for any new offence of any description. That is because in practice it produces actual fines of a derisory level. We are talking about the maximum level, not the fine which will be levied by the courts. In those circumstances, we cannot support the amendment.

The Earl of Northesk: As the noble Viscount, Lord Allenby, explained, the effect of the amendment would be to reduce the maximum penalty for the offence of dog fouling from level 3 to level 1. I indicated on Second Reading my belief that the maximum fine at level 3 is appropriate for the offence in Clause 1. Notwithstanding the eloquent arguments of Members of the Committee, I retain that belief.

It is no doubt to my discredit that I did not put this matter into proper perspective on Second Reading. But I hope now to redress that error on my part.

First and foremost, the current maximum fine under existing by-laws is set at level 2. To my mind it would be foolish to seek any diminution from that established precedent, if only because it would act as a disincentive to local authorities availing themselves of the powers which the Bill would grant them. In effect, a maximum level 1 penalty could mean that local authorities would continue to use by-laws which would negate one of the Bill's primary purposes; that of rationalising and simplifying existing procedure.

Of course I understand the anxieties of the noble Lord with regard to the consistency of levels of fines. It is important that like should be accorded the same treatment as like. However, comparisons are odious. In this context, there is a very real sense in which those who have the misfortune inadvertently to encounter a dog's mess are quite literally subjected to harassment, alarm or distress.

Furthermore, it is worth noting that there is a currency of opinion which believes that failure to clear up after a dog is worse than dropping litter, despite the arguments of the noble Viscount. However, the latter offence carries a maximum penalty at level 4 rather than level 3. Perhaps more telling is the fact that failure to have a collar or identification on one's dog when in a public place carries a maximum penalty at level 5.

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Nor should we lose sight of the fact that the Bill seeks to establish also a system of fixed penalty notices, currently set at £10 for the offence of fouling. In such circumstances, it is entirely reasonable to suppose that only the most persistent and recalcitrant offenders will find themselves prosecuted in court and thereby expose themselves to the maximum penalty at level 5. Of course it will be for the courts to determine the actual level of fine, which in all likelihood will be rather less than the maximum in the vast majority of cases, due heed being paid to the particular circumstances of the case.

With those points in mind, I do not perceive that the proposed regime is anything other than utterly fair. I suggest respectfully to the noble Viscount that level 3 is the appropriate level for the maximum fine. On the basis of my remarks, I hope that the noble Viscount will concur with me and withdraw the amendment.

Viscount Allenby of Megiddo: I thank all Members of the Committee who have supported the amendment, and in particular I thank the noble Lord, Lord Campbell of Alloway, for his comment.

I thank also my noble friend for his comments. I agree with him that the legislation has been brought forward too quickly, without proper consideration. However, having said that, I am grateful to the noble Earl, Lord Northesk, for his very full reply to my amendment. I shall study his reply carefully but I believe that it makes sense. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Allenby of Megiddo moved Amendment No. 4:

Page 2, line 4, leave out from beginning to ("not") in line 5.

The noble Viscount said: Under Clause 1(6)(c) a person may not use the excuse that he was unaware that his dog had defecated in a designated area. That seems unacceptably draconian. While it is true that dog owners should reasonably be expected to be responsible for all the activities of their dogs, there can be few criminal offences committed completely unwittingly by a person. Such a person would commit such an offence even if he had known that his dog had defecated in a designated area and had taken steps to remove the faeces.

We have all known of occasions when our beautifully trained dogs have run off after a rabbit, or even in an urban area after a dog of the opposite sex. Having failed in its quest, it then defecates out of one's sight. Should the owner whose dog commits such an act really be liable to prosecution?

The justification for removing that excuse was made by the noble Earl on Second Reading when he attempted to define what is meant by responsible dog ownership. He said:

    "The rationale is quite simple. Responsible dog owning is about having control of one's pet at all times. By implication, if one is unaware of its actions one does not have adequate control of it".—[Official Report, 19/10/95; col. 848.]

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I am not certain whether that definition is applicable to dog owning in all circumstances. Many owners in rural areas lose sight of their dogs and thus, under this definition,

    "would be deemed to lose adequate control of it".

Sadly, I fear that we have another instance here of the towns preaching to the countryside. The Pet Advisory Committee has suggested that the being unaware of defecation excuse would become a common defence and that prosecutions would become difficult and costly.

When we are considering legislation our purpose is not simply to ensure that the offence will result in many prosecutions, but to protect the rights of individuals. One could envisage existing Acts of Parliament which would make legislation more effective; but, thankfully, we do not legislate for that purpose alone and consequently live our lives according to rules and not terror. The amendment would remove that dangerous element from the Bill. I beg to move.

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