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House of Lords

Friday, 7th November 2003.

The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Oxford.

Wild Mammals (Protection) (Amendment) (No. 2) Bill [HL]

Report received.

Clause 1 [Amendment of Wild Mammals (Protection) Act 1996]:

Viscount Bledisloe moved Amendment No. 1:

    Page 2, line 16, at end insert—

"( ) Provided that where—
(a) there is a recognised code regulating the conduct of a particular activity or part of any activity;
(b) the alleged offence relates to conduct in the course of that activity or part thereof; and
(c) the conduct in question is contrary to an express provision of that code,
it shall not be a defence to show that that conduct is in the normal and humane conduct of that activity."

The noble Viscount said: My Lords, the amendment seeks to deal with a point raised by the noble Lord, Lord Whitty, immediately after Committee. We are very grateful to him for raising it, and hope that once the amendment is made he will be entirely content with the Bill.

At present, it is a defence to anyone charged with intentionally causing undue suffering to show that what he did was,

    "in accordance with a recognised code, or . . . in the normal and humane conduct of a lawful and customary activity".

Those two alternatives are necessary, first, because there will be some activities for which there is no code, and secondly, because there could be conduct, even within activities where there was a code, that was not covered by the code's provisions.

The noble Lord, Lord Whitty, made the point that where there is a code and what one has done is contrary to its provision, as the Bill stands it would be open to a defendant to say, "I have done something against the code. None the less I shall call witnesses to show that it was in the normal and humane conduct of a lawful and customary activity". The noble Lord said that that was wrong, and we agree.

Therefore, the amendment provides that where there is a code and one's conduct is contrary to an express provision in it, one cannot say that the conduct was normal and humane. For example, if a code says that anyone who sets traps must inspect them at least once every 12 hours or so, and one has not inspected the trap for 20 hours, it is not open to one to say, "I know that's what the code says, but I shall call witnesses to show that it's perfectly normal and humane to inspect traps once every 24 hours".

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As I said, we are grateful to the noble Lord. I hope and believe that the amendment will satisfy him. I beg to move.

Earl Peel: My Lords, I should like to speak briefly in support of the amendment. It ensures that people could not duck out, for want of a better term, of the code by using,

    "normal and humane conduct of a lawful and customary activity",

as an excuse. I find the amendment particularly attractive because it will encourage the use of codes of practice. I am very much of the opinion that that is the right way forward when dealing with animal welfare issues and, in particular, field sports. I welcome the amendment, as I would anything that encouraged the production of well thought through and useful codes of practice on the subject. The amendment helps in that direction.

Lord Donoughue: My Lords, I am a signatory to the amendment and support it for the reasons given by the noble Viscount. I particularly support it because it was initially suggested by the noble Lord, Lord Whitty, and I am always delighted to support anything proposed by a Minister from that department. I look forward to the comments from my noble friend on the Front Bench with slight trepidation, being aware, as with the Hunting Bill, that sometimes governments, having proposed matters such as the regulatory Bill, subsequently reject them. I trust that that will not be the case on this occasion.

Lord Livsey of Talgarth: My Lords, I, too, support the amendment and believe that it will be a great improvement to the Bill. It will ensure that the codes of practice will be regulated. That is particularly so under its proposed new paragraph (b), where,

    "the alleged offence relates to conduct in the course of that activity or part thereof".

The authority can make regulations and codes, and undoubtedly will. As amended in such a way, the Bill will ensure that no undue cruelty occurs. I believe that it improves the Bill very substantially.

Baroness Byford: My Lords, I support the amendment. When the original Bill was brought before us, it obviously had slight shortcomings. The noble Lord, Lord Donoughue, and the noble Viscount, Lord Bledisloe, have taken away the comments made by the Minister in this instance, and we, too, welcome the amendment. I am sure that we all want people to have regard to their conduct. The amendment will provide much greater openness in the way in which the code is adhered to, and we support it on these Benches.

Baroness Farrington of Ribbleton: My Lords, at previous stages of the Bill, the Minister, my noble friend Lord Whitty, made the Government's general position with regard to the Bill quite clear, and I shall not detain your Lordships by reiterating it.

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In that context, we welcome the efforts of noble Lords to address some of the defects identified by my noble friend Lord Whitty. The amendment goes some way—but, unfortunately, not the whole way—to making the Bill work better within its own terms of reference. It is still defective in two respects: one technical and one more fundamental.

The technical defect is that the amendment is expressed in terms of a defence, while what is needed is a provision that excludes the effect of the exemption in subsection (2)(b). As it stands, therefore, the amendment does not work.

The more fundamental defect is that the amendment does not address the question of what happens when there is no recognised code of practice governing a particular activity. The authority created by the Bill to approve codes of practice will be under no obligation to approve any code in relation to any particular activity; nor will the bodies charged with making such codes be required to do so in any particular case.

Therefore, if a code is not made—for example, because there is no agreement among those concerned or because the Secretary of State cannot approve an unsatisfactory code—the wide open and unacceptable exemption for acts,

    "done . . . in the normal and humane conduct of a lawful and customary activity",

would apply without any check. That might be an incentive for some bodies not to produce or agree on codes which would restrict their current activities.

Therefore, without further amendment, the Bill would still create a significant and damaging loophole in the provisions protecting the welfare of wild mammals.

Viscount Bledisloe: My Lords, I am very grateful to noble Lords who spoke in support of the amendment, but, for two reasons, I am deeply disappointed with the reply of the noble Baroness. First, the amendment was sent to the noble Lord, Lord Whitty, who expressly undertook to let me know if it contained any technical defects or anything with which he was not happy. Having not heard from him, and having received that express undertaking, I confess that I am disappointed now to be told that there is said to be something wrong with it.

On the technical front, I confess that I consider the noble Baroness also to be wrong. The amendment states only that, where there is a code and one has done something contrary to it, there is no defence under subsection (2)—that is, one cannot use the other limb. Of course, it preserves situations where there is no code—because there will be various minor activities or activities which perhaps never have a code attached to them. There may also be occasions when an activity has a code but something arises which is not covered by the code because it is an unusual event.

The noble Baroness said that there is a risk that there will not be a code. But the point of the amendment is that it is deeply in the interests of bodies, which are likely to be invited to make codes, to ensure that a code

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is put forward which is acceptable not only to the authority but also to the Secretary of State. The point is that, where there is a code, if a body seeks to prosecute someone, that person has only to walk into court and say, "Here is the code. That is what I was doing and that is what I am allowed to do".

The alternative of having to call witnesses to show what is in the normal course of conduct is obviously far more expensive. As the noble Earl, Lord Peel, said, the amendment provides more and more encouragement to bodies to say, "Please appoint us. We would like to make a code. Here is the code and please tell us if you want it improved". The aim is to make as many codes as possible covering as much of the sport as possible. I am disappointed with the noble Baroness's reply. None the less, I commend the amendment to your Lordships.

On Question, amendment agreed to.

11.15 a.m.

Lord Mancroft moved Amendment No. 2:

    Page 2, line 43, at end insert—

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