Select Committee on Delegated Powers and Regulatory Reform Second Report



27.  Section 1 of the Wild Mammals (Protection) Act 1996 prohibits certain specified acts (kicking, beating etc.) from being committed against wild mammals, with intent to inflict unnecessary suffering. The offence is triable summarily, with a maximum penalty of 6 months imprisonment and/or a fine of level 5 on the standard scale (currently £5,000).

28.  Section 2 of that Act provides exceptions from the offence in certain cases, including mercy killing and humane killing of mammals taken in the course of shooting, hunting, coursing or pest control activity.

29.  This Bill replaces section 1 of the 1996 Act so that it is the intentional causing of undue suffering itself that constitutes the commission of an offence, rather than doing a particular act. It also replaces the list of exceptions in section 2 of the 1996 Act, so that (in particular) acts done in accordance with a "recognised code" are excepted unless the suffering caused was avoidable. A "recognised code" is a code from time to time published by an authority recognised or established by regulations (paragraph 4 below). Acts done in the "normal and humane conduct of a lawful and customary activity" will be excepted automatically, regardless of what is in any code.


30.  Clause 1(3) of the bill (by insertion of a new section 2A in the 1996 Act) enables the Secretary of State to recognise existing bodies, or establish new ones, which may issue codes which will be relevant for determining whether or not the exception contained in section 2 of the 1996 Act will apply. The clause also enables the regulations to create tribunals which may (either instead of, or as well as, the usual summary courts) deal with offences under the 1996 Act. The regulations are subject to affirmative procedure.


31.  Although the regulations may recognise or establish approving bodies, they cannot provide for any direct control over the content of the codes, nor does the bill itself make any such provision. Accordingly, the effect of the delegation is that the content of a code which will determine whether or not a person has committed a criminal offence will be subject to no Parliamentary control, even though the regulations dealing with the approving body will be subject to affirmative procedure. We consider this to be inappropriate delegation.


32.  The new clause 2A enables the Secretary of State to provide by regulations for criminal offences to be tried outside the usual criminal courts. We consider that this is inappropriate delegation. Any such radical departure from normal procedures would require the details of the tribunals, and the limits of their jurisdiction, to be set out in primary legislation.

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