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Lord Mayhew of Twysden: Will the Minister focus closely on the effect of the amendment tabled by the noble Baroness, Lady Mallalieu, which is simply to require that this crime shall not be committed unless it be shown to be committed intentionally? It is quite a sensible legal maxim to hold that there should be no crime without a guilty mind. We have heard passionately explained the reasons why the other place should prevail in its view if there is a conflict with this House. That is because it is elected; its Members are elected.

Will the Minister reflect on this? If he does not provide a clear definition of a crime—as proposed in the noble Baroness's amendment—he is leaving the definition of the crime to the judges. The judges are not elected—not yet, at any rate. Is that what he wishes to achieve, rather than to accept a simple amendment which brings the legislation—whatever its merits or its ultimate effect—into line with the most fundamental maxim of criminal law?

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There is just one other matter. The Government have made a big point about being tough on crime and tough on the causes of crime. It is just a little difficult to claim to be tough on the causes of crime, if one declines to define what is a crime.

Lord Eden of Winton: I support the amendment moved by the noble Baroness, Lady Mallalieu. In doing so, I should be grateful if the Minister would help me by clarifying the position about what would constitute a criminal offence in these circumstances. My noble friend Lord Crickhowell gave a personal illustration of taking a dog for a walk. I had a similar experience, albeit more than a decade ago.

I remember the experience clearly because I was walking with two dogs along a riverbank. Running parallel with the riverbank was a railway raised on a bank. It so happened that both the bank of the railway and the bank of the river provided the perfect habitat for rabbits. As I said, it was many years ago. Many of the rabbits encountered on that walk were suffering from myxomatosis and were hardly able to move. I shall not describe the nature of my dog because it did not have to be a very athletic beast in those circumstances. Several of the rabbits were caught and we dealt with them appropriately because they were blinded and in the most appalling condition from myxomatosis.

I do not know whether that would fall under utility or under another provision in the Bill. Without the addition of the word proposed by the noble Baroness, Lady Mallalieu, it would seem that if my wife and I, who were in control of the dogs, allowed a similar situation to occur today, or when the Bill becomes law, we would be guilty of a crime. That is unrealistic. It is something that goes against any concept of common sense, which is worrying a great number of people.

Many people who are not hunting—I do not hunt—and just go out in the normal course of exercising their dogs and so forth, would experience something like that. I am sure that that happens every day. Anyone who goes into the country must experience similar occurrences to that. Perhaps people in towns do not; although they might in public parks, particularly where there is a surfeit of grey squirrels and now a surfeit of foxes. But in the country it happens regularly. Are those people to be considered criminals? Are the police to be required to pursue them? Are neighbours to be encouraged to spy on them and to report on them? What kind of society is the noble Lord trying to create?

Lord Hooson: While listening to the debate, I was thinking that I have already twice declared an interest in this matter; first, my agricultural activities and, secondly, for many years I represented a county where there was widespread hunting of foxes because they were so much the predators of sheep. Now I have a third interest to declare. I finance my activities as a farmer and as a politician by another profession where I benefited enormously from being able to argue, from time to time, that the meaning set out in an Act of Parliament was entirely obscure and that a different

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meaning could be given to it. It was therefore very important that the benefit of the doubt should be given to those clients for whom I was appearing at the time.

That is why it is so important to have clarity in this Act. My old friend, the noble Lord, Lord Graham of Edmonton, will appreciate that point. In this country, no one should be convicted of an offence—least of all a fairly obscure one like this—unless it is absolutely proven that he or she had the intention of crossing that Act of Parliament. What is proposed in the first amendment, which is a crucial amendment and totally necessary in this Bill, clears up the obvious ambiguity; that is, what constitutes hunting?

Let us take the example of a drag hunt, which is to become one of the approved pursuits. The dogs follow the drag scent, but a different scent may intervene, perhaps from a hare or a fox. The dogs will follow that scent. Is a criminal offence being committed under those circumstances? Should the people who initially laid out the drag scent be prosecuted?

The Minister for Rural Affairs in the other place is, in my experience, a sensible, reasonable and balanced man. During the Committee stage in the Commons he stated that:

    "The intentions and actions of the hunter determine what is going on".—[Official Report, Commons Standing Committee F, 4/2/03; col. 735.]

That is what he intended, but the Bill which has come to this House does not spell that out. Thus the purpose of the amendment is to spell out the intention so clearly stated by the Minister for Rural Affairs but not made clear in the Bill now before noble Lords. The Minister went on to say that:

    "The actions and intentions of the hunter determine what is going on. Without the intent, a person is not hunting and is not covered by the offence in Clause 1".

But the Bill does not make that clear. All that this first amendment seeks to do is spell it out.

I am amazed that my old friend the noble Lord, Lord Graham of Edmonton, does not appreciate this point. Surely it is not the purpose of this House, as a revising Chamber, to give a blank cheque to an obscure Act and not seek to make it clear. On reflection, I think that my noble friend would agree that the first amendment should be accepted. I would be surprised, knowing him of old, if he did not accept that. Similarly, I support entirely the second amendment in the group.

Lord Elton: On the narrow point of intention, I rise merely to remind the Minister and the noble Baroness, Lady Mallalieu, that at this time of year, although increasingly throughout the year, parks—including London parks—where dogs are allowed off the lead are alive with grey squirrels. If you let a dog off the lead in a London park, you know that it is likely to see and to pursue a grey squirrel. You know also that the squirrel will make it to the safety of a tree first, while the dog has fun chasing it. The squirrel may lose a nut, but no one is the worse for it. However, under the terms of the Bill, you are knowingly allowing the dog to pursue a wild mammal; it need not be a fox.

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On other matters I am very much at one with the noble Lord, Lord Phillips of Sudbury. In its present form I think that the Bill is wrong-headed and it is the function of this Chamber to ask the other place to think again when it gets something manifestly wrong, in particular when it is doing so in the face of a growing chorus of disapproval from the majority of the inhabitants of these islands.

Lord Peyton of Yeovil: I should like very much to extend a word of sympathy to the noble Lord sitting on the Front Bench opposite, the Minister responsible for this Bill. I developed this rather surprising wave of sympathy for him during the Second Reading debate, when the noble Lord seemed to be armoured only by his deftness. Perhaps we can derive a strange kind of satisfaction from the fact that he was doing the will of the "second Tony", as one might call him, Mr Banks, who regards this issue as having been totemised.

It is rather a pity that, when the noble Lord came to reply to that debate, he did not mention any word of the speech of his noble friend Lady Mallalieu. Let me quote one sentence from her remarks:

    "True democracy ensures fair and proper treatment of minorities and avoids misuse of a dominant position. Its hallmarks are fairness, tolerance and broad-mindedness, which are impossible to find in this vindictive little Bill".—[Official Report, 16/9/03; col. 783.]

I hope that, on this occasion, the noble Lord will find it possible at least to say that he has listened to his noble friend. While I could not possibly ask him to say that he agrees with her, I am sure that he would not be so obtuse as to say he disagrees.

I wish to make one other brief and simple point on the question of enforceability, a matter already touched on by my noble and learned friend Lord Mayhew and my noble friend Lord Eden, both of whom have asked how the police can be expected to enforce a law which makes criminal an action which has not been clearly defined.

Perhaps I may remind the noble Lord of one sentence he used in his Second Reading speech on the question of unenforceability:

    "The threat of disruption and unenforceability is not one to which the Government or Parliament can or should succumb".—[Official Report, 16/9/03; col. 771.]

I hope that that threat does not feature large in our debates. I want to ask the Minister as clearly as I can—and I hope that he will try to answer my question—whether he is really suggesting that enforceability is a matter of no importance for legislators to consider.

4.15 p.m.

Lord Donoughue: I support this amendment, to which my name is attached. I say to my good and noble friend Lord Graham that I share the puzzlement expressed by the rest of the Chamber. It seems to me that this first amendment would strengthen the banning Bill, should we emerge with that legislation, because it gives it a clarity and credibility which it would otherwise lack for the reasons that have been explained.

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I should like to ask my noble friend on the Front Bench why the question of intention is not addressed in this Bill. He will know better than most that previous legislation in this area has done so. The last major piece of legislation was the Wild Mammals (Protection) Act 1996, which no doubt my noble friend knows word for word. He will know that the opening section states that if someone is doing something "with intent", that constitutes the offence. My own Private Member's Bill seeks to amend that Act in order to curb cruelty to mammals. It states that it is an offence "deliberately" and "with intent" to cause undue suffering to animals.

The Government took over the banning Bill in an act of striking humiliation and capitulation, but since then it has been the Government's Bill and they have chosen to present it to noble Lords as it is. Perhaps my noble friend can explain to noble Lords why the crucial issue of intent is not met.

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