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Lord Willoughby de Broke: I rise to support the amendment moved by the noble Baroness, Lady Mallalieu. As the noble Lord, Lord Donoughue, has just pointed out, I think that we would help the Government if we were to pass the amendment. I say that because in Committee in another place, the Minister responsible for the Bill, Mr Alun Michael, said that:

Later in that Committee, he said in response to a question put to him by another Member of the Committee that,

    "it depends on whether they are hunting".

If people are merely observing, then they are not hunting. The noble Baroness, Lady Mallalieu, made the point herself: how is one to separate those who are hunting from those who are simply observing, gossiping or talking to their neighbours and doing what many people do while out hunting? Is it only the huntsmen who are actually hunting, is it the master, the field master, or is it those members of the field within a certain distance of the hounds?

Unless the question of intent is satisfactorily resolved there will be endless difficulties in enforcing the provisions of the Bill. I do not see how anyone can reasonably oppose what is, after all, a very small but important amendment. I hope that the Committee will support it.

Viscount Ullswater: It is right that at the outset of the Committee stage we should debate the intention of the owner of the dog. We have heard arguments—for instance, the one raised by my noble friend Lord Eden—which demonstrate the need to protect the dog walker from inadvertently becoming liable to an offence. The intention of the dog may be quite different to the intention of the owner and the two should not be confused. The noble Lord, Lord Donoughue, indicated that the drafting of legislation for previous Acts attempted to recognise that fact.

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The Bill seeks to draw a very fine line in regard to animal welfare. It is apparently all right to shoot, snare, ferret, fly a falcon or hunt with dogs the rabbit or the lowly rat, but not the four wild animals that are commonly the quarries of packs of hounds. The welfare of the rabbit somehow is not a problem. My noble friend Lord Eden referred to the occasion when he was walking his dog and came across rabbits with myxomatosis. You can do what you like with rabbits. They are exempted; they do not seem to have a welfare problem.

The Bill is aimed at the hunter rather than at the hunted. How can animal welfare campaigners be so selective as to distinguish between the hare and the rabbit? Many people would not be able to tell the difference between the two species.

Lord Eden of Winton: Rabbits are not exempted in that sense. They are exempted only if they are on land that you own; or if you have permission from the owner of the land; or, if you do not know who owns it, you have taken the trouble to try to find out who owns it. If, in the illustration I gave, I had no idea whether it was public land or whatever on the side of a river, it would not be covered by the exemptions itemised in Schedule 1 to the Bill.

Viscount Ullswater: I accept my noble friend's strictures. I was referring to the welfare of the animal rather than the preconditions needed for hunting to take place.

We do not have a tradition of hunting rabbits with packs of hounds, but in France they do. There are 45 foot packs registered there which are experiencing a rapid growth in popularity, as the Burns report tells us. Where would the welfare considerations of the humble rabbit be in this country if packs of hounds were hunting it? Would it suddenly gain different rights to protect it from hunting with dogs? Once the intention becomes a collective sport it runs the risk of being banned. It is impossible to consider the Bill in terms of animal welfare when such glaring inconsistencies exist.

In any proper regulation of hunting legislation, an intention on behalf of the hunter needs to be demonstrated. I support this simple but important amendment.

Lord Mancroft: My noble friend Lord Ullswater may well have put his finger on the issue. This is not, as the noble Lord, Lord Graham, believes, an animal welfare Bill—it was never intended to be; it is a criminal Bill. That is the problem. Members of another place and casual observers, if such people exist, tend to think of it in terms of animals, but the Bill has nothing to do with animals at all; it is to do with people and their conduct. It is not a pro-fox or a pro-deer Bill; it is an anti-people Bill which creates a criminal offence.

During the Committee stage in another place, it became clear that the Minister had spent an awful lot of time looking at the issue of hunting and consulting

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experts, scientists, vets and so on. But what he did not do, I suspect, was to go out to see what happens in the countryside; to observe what lawyers might call the facts of the case; to see what happens when people go out with dogs in the countryside, either with the personal intention of hunting or of going for a walk with their dogs and not hunting. That is where the problem exists.

As with so many Bills, it is a problem of language. You might come up to me and say, "What are you doing on Saturday?" and I might say, "I am going hunting". But I promise you that I am not going to run across a field, barking, after the scent of an animal. I cannot do that. Hounds can do that, dogs can do that, but when I say, "I am going hunting", I get on a horse—I do not wear a red coat, but I could—and I follow a pack of hounds. I do what Mr Alun Michael said in Committee in another place. He stated:

    "Hunt followers, who merely observe the progress of the hunters, or follow them at some distance without themselves engaging in the pursuit of the wild mammal being hunted, are not hunting and are not covered by the offence".—[Official Report, Commons Standing Committee F, 4/2/03; col. 735.]

If in the process of galloping along on my horse I engaged in the pursuit of the wild mammal—or I got in the way—I would be in dead trouble.

In reality, I am an observer. When I say, "I am going hunting", I mean that in exactly the same way as others may say, "I am going to football". They are not going to kick a ball about but to sit in a stadium. The only difference between the person who goes to a football stadium, sits in a seat and watches the game being played, and the person who goes hunting on a horse—both are sitting down, thank God—is that, because the field of play moves rather further in hunting, hunters require a chair with legs. But we are not participants. Clearly from what he said in Committee, the Minister believes that we are. There is a complete misconception.

There is no real definition of hunting in the Bill. It is not as clear as the Minister in another place thinks it is; it is extremely unclear. This means that the provisions in the Bill will be incredibly difficult to enforce. As other noble Lords have said, one of the most obvious problems is that most hunting takes place out of sight and sound of the quarry. When dogs hunt, most of the time they are following an invisible line on the ground. Even the most expert huntsmen are occasionally fooled as to whether they are following a hare, a fox or a deer. Usually they get it right but, although they will not admit it in public, occasionally everyone gets it wrong and the hounds chase the wrong quarry.

Of course, you cannot see the quarry, but if they can be fooled, how will a police constable be able to give evidence in court about what was going on? He would not possibly know. Who will be the expert witness? There will be probably only one at the scene of the crime—the huntsman—and I very much doubt that he will be an expert witness against himself.

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The Bill is unenforceable because hunting is not defined. I suspect that those who drew up the Bill did not know how to define it. The Bill needs a definition and it needs an intention. As we go through the Bill we will come across other matters that need definition, but the first and most obvious is that there must be an intention to commit the crime. You cannot mug someone by mistake. You cannot steal a car by mistake and say, "Honestly, officer, I did not mean it. It was an accident. I stole it but it wasn't on purpose".

But you can hunt by mistake. My wife does it every day. She takes out our three dogs and they go hunting. She says, "Stop" and they say, "No", and off they go. That is a reality of life. Technically, she probably commits an offence every day, and I suspect that there are masses of people up and down the country like her. It is essential that we are clear about this.

I have listened to debates in your Lordships' House when criminal justice Bills were being discussed. On many occasions there were arguments about definitions and the precision of language. This is such a debate. It is not about hunting but about accurate law. As it is drafted at the moment, the Bill is extremely inaccurate.

4.30 p.m.

Lord Skidelsky: I support the amendment for the very narrow but precise reason given by the noble Lord, Lord Donoughue, that it is independent of the wider purposes of the Bill. It is relevant and ought to be part of the Bill, however wide the net of exemption is cast. It is equally relevant for a Bill which bans hunting and a Bill in which certain pursuits are non-exempt. That is the answer to the noble Lord, Lord Graham of Edmonton. Therefore, it is simply a question of good, enforceable and commonsense law. That is the only really relevant point on this amendment.

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