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As I see it and as many other noble Lords have already said, the Bill attempts a difficult balancing act. On the one hand, there is the need to protect the right to freedom of speech and on the other there is the need to protect individuals from defamation. On one level that sounds simple, but of course it is not, otherwise we would not be debating it today. In relation to this Bill, many noble Lords have mentioned the recent case of Dr Simon Singh and the consequences of his critique of chiropractors and their claims about the ability of their practitioners to alleviate some distressing illnesses. If ever a case invoked the real meaning of what I understand is meant by the term "public interest", this was it. I do not need to rehearse the case again because, as I say, it has already been referred to several times. Suffice it to say that exposing highly questionable health claims unsupported by rigorous scientific evidence is clearly in the public interest. However, this is sometimes used by press and media outlets as a defence on other slightly more spurious grounds.
For that matter, it can be quite a tricky area to define and to make clear to the general public what was actually meant. Although the print media have not always been successful in these cases, there have been a number of high-profile instances when such a defence has been habitually invoked by newspapers. I think particularly of the libel case involving the private life of Formula One boss Max Mosley as well as countless examples of the indiscretions of Premier League footballers. These instances have provoked public interest of an altogether different kind.
The Defamation Bill attempts to drags the libel laws into the digital age-again, this has been mentioned by several other noble Lords-although there are still concerns about where an organisation like Mumsnet stands as a site that hosts opinions and critiques from a very wide range of people over which the organisation exercises no form of editorial control. Will Mumsnet be held responsible for the content on its site? The noble Baroness, Lady McIntosh, referred to this, and I do not think that the position is as clear as might be thought. Indeed, Mumsnet has raised the issue because it does not feel that it is. I guess that this is covered by the clause that spells out the difference between a "facilitator" and a "primary publisher". That distinction could be crucial and I would welcome some clarity on which category Mumsnet and other similar organisations might fall into.
In general, the National Campaign for the Arts welcomes the Bill inasmuch as it represents a continuing
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The Bill also extends absolute privilege to cover fair and accurate reports of proceedings in Parliament; anything published by or on the authority of Parliament; and a fair and accurate copy of, extract from or summary of anything published by or on the authority of Parliament. Again, that is welcome.
The change from the defence of "fair comment" to a defence of "honest opinion" will be welcomed by many people, and particularly by critics and reviewers of art, books, theatre and other art forms, as well as by restaurant and food critics, who increasingly come under pressure not to make adverse criticisms of what they have sampled for fear of being prosecuted. The four conditions required for a defence of "honest opinion" seem reasonable, although I am sure that in the future there will be many struggles over the meaning of the term should it become law.
The NCA is particularly concerned about the need to establish serious damage to reputation. Clause 11 potentially makes proceedings more difficult for the claimant when it stipulates that a body corporate must show that the publication,
It is noteworthy that, in contrast to the position in other jurisdictions, no exception is made for small corporations or non-trading corporations. This could have an adverse impact on arts and third-sector organisations, for some of which reputational damage is considered to be a substantial risk on a par with financial loss. It could be argued that the reputation of such bodies is being treated as nothing more than a financial matter when in fact it is a considerable part of their cultural and social capital. This could be problematic for charitable bodies and NGOs, and I would be grateful if the noble Lord, Lord Lester, would clarify that point.
Another point that might affect smaller, non-media organisations is that the Bill explicitly states that the extent to which the media have complied with codes of conduct, such as that of the Press Complaints Commission, is one of the factors that the court should consider for a responsible publication defence. However, bloggers and NGOs-who are also involved in investigative reporting-do not have the same editorial codes of conduct, or sometimes even any at all. This
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I support some of the comments made by the noble Lord, Lord Triesman, and the noble Baroness, Lady Kennedy of The Shaws, who said that it was essential to distinguish between journalists-whether citizen journalists or otherwise-who act with integrity and honesty in their investigations, comments and criticisms, and those who are simply set on sensationalising and traumatising vulnerable ordinary citizens in order to sell more products. In this respect, I have some sympathy with the slightly contrary position that has been adopted.
Like many others, I see the Bill as a welcome step towards legislation that is much more fit for purpose than the legislation that it is intended to amend or supersede. Like the NCA, I welcome the introduction of the Bill as it stands, with some of these interventions and comments taken on board. It is a timely intervention that goes a considerable way towards enabling legitimate and honest comment and opinion.
1.40 pm
Lord Bach: My Lords, I shall begin what I intend, and what I am sure the House fervently desires, will be a fairly short contribution with a number of congratulations. I congratulate, first, our two maiden speakers today, my noble friend Lady Hayter of Kentish Town and the noble Lord, Lord Willis of Knaresborough, who both come to this House with high reputations. After their contributions today, we can all see why. We look forward to hearing much from them in the future. I congratulate also all those who have spoken in this debate, whether lawyers or non-lawyers. The fact that both have been importantly involved in this debate proves perhaps the point, if it needed proving, that the law of defamation affects all of us in society. Above all, congratulations are due to the noble Lord, Lord Lester. While there is clearly a consensus for reform, he has taken matters a step further and produced a serious and compelling legislative proposal in the form of the Bill before us today. For that, he deserves much more merely than the thanks and congratulations of this House; he deserves the congratulations and thanks of the country.
I commiserate with the noble Lord on being so near yet so far from being the Earl of Leicester. What a wonderful thing it would be to be Earl of what to some of us is God's own city, but, distinguished as he is, he has not quite yet reached that high point.
I hope that it comes as no surprise that we on this side in favour of reform in this area of the law-it was specifically referred to in our recent manifesto. Therefore, it follows that we warmly welcome this Bill and its crucial role, as we see it, as instigator of legislative change-it is not the final word; the noble Lord, Lord Lester, made that absolutely plain. It is quite clear that
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Some much publicised and shocking cases-the Singh case here comes to mind-have also been instrumental in bringing this campaign to the wider public's attention. I praise the organisations Index on Censorship, Sense About Science and English PEN for their campaigning and influence.
As to the contents of the Bill, it would be foolish at this stage for any political party to commit itself in detail to a precise view on each clause. That is for a later time but, I hope, not too much later. I can say that, as a whole, the Bill strikes us as being sensible and practical in establishing a better balance between the right to personal reputation, so well argued for in this House today by my noble friend Lord Triesman, the noble and learned Lord, Lord Hoffmann, and my noble friend Lady McIntosh among many others, and the right to free speech; in other words, the balance between Articles 8 and 10.
It is clear that the time has come for the scope of the defence of public interest, as ruled on in Reynolds and Jameel, to be set out in statute. The changes in both words and meaning to the defences of "fair comment" to "honest opinion" and "justification" to "truth" seem at first sight to be reasonable and workable. Similarly, the Clause 9 provision on responsibility for publication and the Clause 10 creation of a single publication rule with discretion for the court seem useful and important proposals. We will want to look closely at Clause 11 dealing with actions for defamation brought by corporate bodies, but the Australian experience and the noble Lord's draft clause dealing with our own law looks more than interesting.
I listened with great care to what the noble and learned Lord, Lord Woolf, had to say about Clauses 14 and 15 and the issue of trial by jury in defamation cases. We believe that on balance it is right to reverse the presumption very much for the reasons set out by the noble and learned Lord and in paragraph 151 of the Explanatory Notes. It is interesting and encouraging that that excellent organisation, Justice, agrees in principle. Of course, the interests of justice caveat is absolutely essential to that proposition.
A possible addition to the Bill arises out of a concern referred to already on a number of occasions in speeches today, raised by the organisation Mumsnet. It is concerned that the Bill as presently drafted does not provide explicit cover for hosts of third-party comments. I invite the noble Lord to consider that point, not necessarily today but as the Bill progresses.
There will obviously be a great deal of further discussion and debate before the final shape of the reforms is agreed. I do not think that anyone can argue that this is not a huge step forward. However, the Bill does not deal with-and it is not intended to deal
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The Jackson report is a massive piece of work covering the whole civil law field. Given its length, importance and complexity, it was produced in a remarkably short period of time, and praise has been given to Sir Rupert for his work. However, with the greatest of respect to how government works-and I have a little experience of that-I do not believe that legislation will emerge for some considerable time yet. I would love to be proved wrong, but I fear that I will not be. It is not like waiting for Godot, who of course never came; waiting for Jackson will be rewarded eventually, I am sure-but not soon, and certainly not in the near future, and it is in the near future that we need change to the success fee regime in this field. I know that the noble Lord, Lord Lester, and other noble Lords, agree with that proposition. So I urge the Government to bring forward the necessary secondary legislation, as we did-and, I hope, with more success-as an interim though not the final solution to what is, as many noble Lords have said, a major problem.
Meanwhile, the Bill will of course pass its Second Reading and will then be subject to detailed consideration and discussion. We very much hope that that will be so. We wish it well and pledge to do our part in taking it forward. We look forward to hearing what the Minister has to say.
1.50 pm
The Minister of State, Ministry of Justice (Lord McNally): My Lords, there were once two cows looking over a fence when a tanker passed by. On it was written, "Drink Co-op milk-pasteurised, sterilised, homogenised". One cow turned to the other and said, "Makes you feel plumb inadequate, doesn't it?". [Laughter] That is something of my feeling today, following this debate that has had such a galaxy of talent and a plethora of learned noble Lords, all with their usual fluidity. I will make some effort to respond.
I was pleased by the approach of the noble Lord, Lord Bach. I, too, shared some interest in the thought of my noble friend Lord Lester as the Earl of Leicester. I sent out for clarification because I could not remember if he was one of the Virgin Queen's friends who came
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I acknowledge that the previous Government did a lot of groundwork in this field. We are building on that. I understand the noble Lord's desire to examine some of the details of my noble friend's proposal. I hope that I can make some suggestions on how we can do that.
Before that, I express my personal delight that both maiden speakers today are old friends. It was a delight to hear them both make such excellent speeches. It was interesting to find out from the speech of the noble Baroness, Lady Hayter, how many of us have Fabian pasts-almost as interesting as hearing of some of the previous jousting of the legal profession. I say to the noble Baroness that when I set out in politics, my ambition was to one day be on the government Front Bench sitting next to an athlete. I admit that I did not think it would quite work out this way. That just shows that you never can tell.
The noble Lord, Lord Willis, was just as good as I knew he would be. He brought his amazing experience to the House, not least on science and technology issues. It was also a first for me: it was the first time that I heard a Yorkshireman say that he was modest. That is almost a contradiction in terms. My noble friend Lord Shutt is at this moment outing him as a Lancastrian. Is that true? Oh my God. Now I understand his modesty.
There have of course been ample and justified tributes to my noble friend Lord Lester. So many important pieces of legislation over the past 40 years-the Human Rights Act, the forced marriages Act, the Equality Act and so on-have had his fingerprints all over them. As a parliamentary reformer, he has a Wilberforce-like tenacity in pursuing the causes that he espouses. With his track record, the prospects of a defamation Bill reaching the statute book are high indeed. My noble friend rightly paid tribute to his colleague, Sir Brian Neill, and Heather Rogers QC, who have helped him in producing this formidable piece of work.
Today's debate has been extremely interesting as part of what the noble and learned Lord, Lord Woolf, termed the great debate between freedom of speech and the rights of the individual. Several noble Lords, including the noble Lords, Lord Goodhart and Lord Pannick, and the noble Baroness, Lady Kennedy, and many others, referred to this tug in the task ahead of us. I was pleased that the noble and learned Lord, Lord Woolf, said that because of the tension between those two objectives, it was right that government and Parliament should now take the initiative in trying to get this balance right. A constructive process of reform usbis what he called for and what I hope we can respond to.
The noble and learned Lord also mentioned another theme that has come through-that of cost. The noble Lord, Lord Bach, referred to it as the elephant in the room. It has to be addressed. Again, many noble Lords referred to this. We are urgently assessing the recommendations from Lord Justice Jackson's report. We will try to come forward with proposals as quickly
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I give the usual ministerial health warnings at the beginning of a response to a Second Reading of a Private Member's Bill. The Government will not oppose giving the Bill a Second Reading. Indeed, we welcome its introduction. As the noble Lord, Lord Lester, has indicated, my department and I have already benefited from discussion with the noble Lord and his team on this matter. We will also benefit greatly from the quality and diversity of noble Lords' contributions today. I used to say about the distinguished crop of QCs on the Liberal Democrat Benches that if I had to pay them, I could not afford them. That is doubly true of the wealth of experience made available to us today.
I am afraid I cannot agree with the noble Lord, Lord Ramsbotham, however, that the Government should simply adopt the Bill. What I say later will, I hope, reassure him that that is not a way of avoiding action-quite the opposite. My hope is that having received his Second Reading, the noble Lord, Lord Lester, will give me and my advisers time to digest what has been said today. We will then embark on a wide range of consultations over the summer to take stock. When the House returns in the autumn, we will have made considerable progress on a draft government Bill, which we hope to publish early in the new year and make ready for pre-legislative scrutiny. As I say, this is not a vague promise of better things to come, but a firm commitment to action on this matter. Such a timetable would give us a strong case for making time in the 2011-12 legislative programme for a substantive Bill. Old parliamentary hands will know that even in that form of words, it is positively daring-certainly for a Minister of my rank-to suggest such a thing. I hope the noble Lord sees that as a sensible and speedy way forward.
We recognise the concerns that have been raised over recent months about the detrimental effects that the current law may be having on freedom of expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism; and the extent to which this jurisdiction has become a magnet for libel claims. These are all matters that have been covered in this debate. In reviewing the law, we want to focus on ensuring that freedom of speech and academic debate are protected and that a fair balance is struck between freedom of expression and the protection of reputation. We want to ensure that the right balance is achieved so that people who have been defamed are able to take action to protect their reputation where appropriate, but that free speech is not unjustifiably impeded. We believe that this will help to ensure that responsible journalism and academic and scientific debate are able
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I wish to respond briefly to specific points raised in the debate. The noble Baronesses, Lady Young and Lady McIntosh, referred to Mumsnet. Our law in this respect may have been developed to meet the needs of a past age. Noble Lords have referred to the internet and the convergence of media. When we conduct consultations over the summer we will want to talk to internet providers to explore their concerns. Mumsnet is welcome to express its concerns to us to explore how they can be met in legislation.
I was grateful to the noble and learned Lord, Lord Hoffmann. It was worth the entrance fee to see the jousting between him and the noble Lord, Lord Pannick. At times, you could see going through the mind of the noble and learned Lord the thought, "If ever I got you before me, young man, I'd show you a thing or two". However, it was interesting to hear the warning about what the American legislators are up to. I have asked my department to request the embassy to let us have its thoughts on that and what implications it has for us.
The noble Lord, Lord Thomas of Gresford, and others mentioned the super injunctions. The Master of the Rolls has a committee looking at their implications and we await its report. Interesting comments were made about libel tourism. Some think that it is much exaggerated while others consider that it is a real threat. We are aware that simply identifying cases does not present a full picture. We are worried about the so-called "chilling" effect and are keen to give careful consideration to ideas for improvements that could be made to address libel tourism, including those put forward in Clause 13 of this Bill.
I was very interested in the intervention of the noble Lord, Lord Hunt. We are looking at a greater use of mediation not just here but in other areas of law. This should be developed further. It is well worth pursuing, and not just in this Bill. The Government should pursue it in other areas.
The noble and learned Lord, Lord Hoffmann, the noble Baroness, Lady Kennedy, the noble Lord, Lord Thomas of Gresford, and others referred to companies suing for libel. As part of our review of defamation law, the Government are considering whether the ability of corporations to sue should be limited in any way. We recognise the important point that NGOs have raised about the problems that they are encountering due to the threats of libel proceedings by large corporations. Clause 11 gives us substantial food for thought and will be helpful in those considerations.
The noble Lords, Lord Triesman and Lord Bew, said that the public-interest defence might need further work. We agree. There is a case for codifying it, but we want to hear more opinions about how that can be done.
Although there is considerable thought that parliamentary privilege should be covered in the Bill, there are also concerns that we want to examine further, including with my noble friend Lord Lester.
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The noble Lord, Lord Triesman, asked us to refer the Bill to the Law Commission. I am afraid that if I said yes, it would confirm all the worst fears of the noble Lord, Lord Ramsbotham, that we would be engaging in delay. I am an admirer of the Law Commission and we will take any advice that we receive from it on this issue, but given the work that has been done by my noble friend Lord Lester and by the previous Administration, and given the amount of consultation that we want to consider over the summer, the way ahead that I have proposed is to move as quickly as possible to a full government draft Bill which can go into pre-legislative scrutiny with a possibility of legislation in the second Session of this Parliament. That matches the advice that we have received from a number of causes-not to rush our fences, but not to embark on endless delay. I think that we have got the right balance.
I was very interested in the contribution of the noble Baroness, Lady Buscombe. I know that her work has involved trying to get the Press Complaints Commission into shape. I welcome that. She will know that I am not the greatest admirer of the PCC. I have often said-and I said more than 10 years ago in a debate in this House-that the PCC does a good job in 98 per cent of its cases; in the 2 per cent of cases when the media see advantage, money and profile overtaking the code, the code goes out of the window. But by its deeds we will judge it. The noble Baroness has set herself a task of making self-regulation work, with public confidence, and I wish her well in that. When the owners of newspapers and journalists see entrapment and illegal activity as demeaning of their profession and damaging to the long-term interests of the media, we will all be in a good place.
The noble Baroness also threw up the challenge of the convergence of the media, which perhaps requires other parts of the media, outside the realms of the PCC, to consider coming under its code. This is certainly an interesting area that is not central to the Bill, but important to it.
Perhaps I may repeat that although the debate has to a certain extent been a lawyer fest, as the noble Baroness, Lady Young, pointed out, it has also been of value that a number of either lapsed lawyers or noble Lords who have never been lawyers have participated and brought an extremely important dimension to this task. The noble Lord, Lord Bew, pointed out the dangers to academic, not just scientific, work. The contributions by my noble friends Lord Taverne and Lord Willis warned of the dangers to scientific commentary and the testing of scientific views. The noble Baronesses, Lady Hayter, Lady Young and Lady McIntosh, pointed out that the creative industries and the arts are influenced by this issue.
It is not possible for me today to indicate exactly what provisions will be included in the Government's promised draft Bill on defamation because of the ongoing consultations to which I referred. However, a number of areas have already been subject to much discussion and I confirm that we will give further consideration to them with a view to including provisions in the draft Bill. In particular, we recognise the strength of the calls that have been made for a statutory defence relating to the public interest and responsible journalism.
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We recognise also the criticism that English defamation law has received because of the perception that libel tourism has flourished. The approach adopted in the noble Lord's Bill offers us helpful food for thought. The Bill also includes provisions relating to multiple publications in defamation proceedings. We recognise the concerns that have been expressed in the media and elsewhere about the difficulties that the multiple-publication rule, whereby each publication of defamatory material gives rise to a separate action subject to its own limitation period, causes in relation to online material. We will consider how best to frame a single-publication rule to remove the threat of open-ended liability that currently exists. Again, the Bill provides a very interesting approach.
In addition to the areas that I have mentioned, the noble Lord's Bill represents an extremely valuable first step in identifying a range of issues in respect of which reform will be beneficial. In particular, the Bill takes in provisions on renaming and codifying the existing defences of justification and fair comment; on the basis on which an action for defamation can be brought; on the ability of corporations to bring defamation actions; on trial by jury-the contribution of the noble and learned Lord, Lord Woolf, was very interesting and gave further justification for why we need further consultation on this matter; on defamation in the context of internet publication; and on issues relating to absolute and qualified privilege, including parliamentary privilege. These are all important issues that merit further consideration in the context of the Government's review.
Ensuring that the right balance is struck is a difficult and sensitive exercise. It raises very complex issues on which a wide range of differing views are likely to be held. We believe that it is important to ensure that the views of all interested parties are taken into account before we move further. As I have said, we therefore intend initially to conduct informal discussions with all interested parties to ensure that we can reach a fully informed assessment of the merits of reform in those areas, and on any other issues that may be of concern. In the mean time, we wish the noble Lord's Bill to have a Second Reading, on the basis that we are listening to those who are enthusiastically in support of it and to those who have constructive criticisms. We recognise the considerable expertise in this area of the noble Lord and his advisers, and the extensive consideration that they have given to these issues, and we are keen to co-operate further in taking matters forward. Following the informal consultation with interested parties that I have outlined, I hope that I and my team will hold further discussions with the noble Lord, possibly immediately after we return after the Recess. I hope that on the basis of our firm intention to publish a draft Bill in the first Session and our commitment to take the matter forward on a co-operative and timely basis, the noble Lord will feel able not to pursue his Bill further at this time.
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We have had a debate of much wisdom and wise advice. We are not rushing to legislate, but considering very carefully how to proceed. The way ahead that we have set out reflects the sense of urgency that has been present in this debate, but also has the right balance of caution that has been another underlying theme. I hope that the Bill gets its Second Reading and look forward to the noble Lord's response.
2.14 pm
Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Campbell of Alloway, once rebuked me for making a serious speech after the dinner hour and I am very aware that I am about to make a short speech after the lunch hour. Let me make a few points very quickly.
On the subject of compliments and flattery-this House is an admirable example-I say, with the noble Lord, Lord Bew, in mind, that there were two 19th-century historians, Freeman and Stubbs. A wit wrote of their reviews of each other's work:
"Ladling butter from alternate tubs,
Stubbs butters Freeman and Freeman butters Stubbs".Having said that, I should say that the two maiden speakers deserve all the compliments that have been paid to them.
On the subject of my becoming the Earl of Leicester, I should add not only that there is already a noble Earl, which is why my name is Lord Lester of Herne Hill, so that people who cannot differentiate spellings can understand, but also that I am reminded of Sir Stephen Sedley, who, when faced with a pompous colleague of mine who had made himself honorary life president of a lawyers' body, said: "Why only life?".
I pay tribute to the noble Lord, Lord Bach, to Jack Straw and to the former Government, who initiated serious reforms in this area. I was glad to hear what the noble Lord said today. I agree with him very much on the need for urgency on costs; we should not wait for wholesale reform.
I say to the noble Baroness, Lady Hayter, that I thought that I was chairman of the Fabian Society and not its treasurer. I should like that to be looked at.
Let me quickly deal with a few points. I thought that we had covered Mumsnet but, if we have not, plainly it should be regarded as a mere facilitator and therefore not liable.
The speech made by the noble Baroness, Lady Hayter, as a consumer champion was extremely important. I agree with what was said about self-regulation and the role of the PCC. I also agree with the scepticism of the noble Lord, Lord McNally, about where we are with the PCC. I hope that it can be strengthened.
I agree with the noble and learned Lord, Lord Hoffmann, that the problem of libel tourism has been greatly exaggerated. The real problem is not so much libel tourism as our domestic libel law. He may not know this, but we dealt with a form of libel tourism when the noble and learned Lord, Lord Mackay, was Lord Chancellor. We were worried about Singapore bringing its libel law into this country. When we
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The noble Lord, Lord Willis of Knaresborough, in his most memorable speech, made an important point. He asked why we had not confined companies to malicious falsehood. That is an interesting idea. In a case that I did, the Derbyshire case, the House of Lords decided that public authorities-Governments-could not use the law of libel but had to proceed under the tort of malicious falsehood, which makes me wonder whether we have got that right in the Bill. Perhaps the right thing to do would be to extend the notion of public authority to certain classes of corporation and treat them in the same way. However, that is a difficult area and I am sure that we should all like to think about it more.
Of course, ADR and mediation are vital. However, we have not dealt with that area in the Bill because a distinguished former libel judge, Sir Charles Gray, is chairing a working party on that subject, although I do not think that it has yet produced its report. When it does, we very much hope that that will happen, so legislation is not needed.
My noble friend Lady Bonham-Carter, speaking with a marvellously husky voice and sacrificing her health, mentioned a number of matters. I was reminded that Quilliam, a body dealing with extremist activity, especially among Islamic fundamentalists, told me that when it made criticism of the Islam Channel, it was threatened in a very coercive way with libel proceedings-that is, Islam Channel, the broadcaster, was threatening action against Quilliam as a small NGO. When journalists writing for the LSE's Beaver magazine criticised a lecturer for allegedly spreading fundamentalist views, the threat was made that, unless they disowned Quilliam and what had been said, it would be all the worse for them. Those are examples of, as it were, the other side of the equation.
I want to mention two examples from my practical experience of my attempts, in the words of the noble and learned Lord, Lord Woolf, to persuade the courts to reform the law. I suspect that the first will amuse the noble and learned Lord, Lord Hoffmann. When I was arguing the Reynolds case, the noble and learned Lord, Lord Steyn, looked at me and said, "What about German ad hoc balancing law?". I asked, "What about it?". He said, "Do you know about it?". I said that I did not, to which he replied, "Well, you had better know by tomorrow morning". I knew then that I had lost. He was referring to a notion in German constitutional law about which his co-pupil, Basil Markesinis, had published a book dealing with what is known as ad hoc balancing. The trouble with Reynolds was that it applied German constitutional law-ad hoc balancing-to English libel law. The result was to create great uncertainty, which the noble and learned Lord, Lord Hoffmann, and others sought to
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The other example was brought to mind by what the noble Lord, Lord Bew, said regarding Northern Ireland. I was in a case called Convery v Irish News, in which a food critic, Caroline Workman, was cross-examined for more than three days as to whether the vegetables in the restaurant about which she had written a disrespectful review were or were not as she said they were. The judge, jury and counsel all misunderstood the true nature of the defence of fair comment and treated it as though it were the defence of truth. She was cross-examined for four days. The newspaper was made to pay, I think, £25,000 in damages and £100,000 in legal costs but it won on the appeal, in which I appeared. Caroline Workman was so distressed by her experience as a victim of libel law that she gave up her profession of journalism altogether.
That is the other side of the coin compared with the description given by the noble Lord, Lord Triesman, of claimant victims who are not treated justly. I am grateful to the noble Lord, Lord Triesman, for his criticism of the Bill; one needs to hear that. However, if he is so concerned about claimants, I wonder why he does not deal with poor claimants. They are not the ones who go to court, and there is no legal aid for poor claimants. The problem with the conditional fee agreement and the 100 per cent success fee is that they are not normally for poor claimants, but for very rich ones. If we ask the claimants' lawyers for particulars on their success rate, we find that the CFA people are on the side of rich claimants, and that is where the law is profoundly unequal.
I am not concerned with producing a Bill for the entertainment industry or the media; I am concerned with producing a Bill that protects the ordinary, individual citizen/critic, the small NGO, the regional newspaper, those from the arts and sciences, and so on. I am very glad that the noble Baroness, Lady Young of Hornsey, agreed to take part in this debate, and I am glad that others who are not lawyers took part. This is too important a subject to be left even to the legal profession. The noble Lord, Lord Pannick, asked why Clause 12(2) is necessary. I think that he is right that it is not necessary, but we put it in to show how conspicuously moderate we are. We may have been too moderate in that respect.
Finally, I must say that when I hear my noble friend Lord McNally speak as he did just now, I wonder whether I am alive at all or whether I am in heaven. I never thought to hear such a reply. His remarks are extremely encouraging because they indicate an open-mindedness to reform, a willingness to get on and to listen. I am sure that it is better for the Government to have a draft Bill and a Joint Committee of both Houses to look at it; and then, hoping that we are in good health, we could have an actual Bill, which I hope will start in this House rather than in the other place. This House, as we know, has very special qualities. On that basis, I ask the House to give the Bill a Second Reading.
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Dog Control Bill [HL]
Main Bill Page
Explanatory Notes
Amendments
Second Reading
2.26 pm
Lord Redesdale: My Lords, it is quite useful to carry on from the previous Bill in this Second Reading debate because we are also considering changing legislation that is slightly flawed. I refer to the Dangerous Dogs Act 1991. I was looking round the Chamber trying to work out how many Peers were here in 1991. I know that the Minister was. Actually, everyone speaking today was, apart from the noble Lord, Lord Grantchester. This was one of the first Bills I ever saw go through the House as a young 23 year-old.
The Bill at that time was enacted as a result of a very unfortunate dog attack, but it was a knee-jerk reaction and many people say that the 1991 Dangerous Dogs Act is one of the worst pieces of legislation on the statute book. To put that in context, the Metropolitan Police said that in the past three years £10 million has been spent trying to kennel dogs that are seen to be pit bulls and prosecute their owners.
The legislation has not worked. The issue was to make everybody safer but in 2008-09 NHS costs in A&E were £2.7 million for dog attacks. They are rising year on year. In London they have gone up 79 per cent and 43 per cent in the rest of the country. The attacks on young people last year went up 119 per cent. If we had legislation on dogs that worked I would have no difficulty in not introducing this Bill. But that is not the case.
More importantly, the Dangerous Dogs Act created half of the problem. By saying that anything that looks like a pit-bull terrier is a dangerous dog has created status dogs. There has been a massive rise in dogs that people believe are dangerous. We can see them in every street in London. I am afraid I was not here for the maiden speech of the noble Baroness, Lady Hayter, but I was in Kentish Town the other day, and we can see these dogs there and in all parts of London. There is a real issue not about the type but about the behaviour of dogs. The Bill deals with the deeds of the dog, not the breed of the dog.
We can make sure that dogs on our streets are safe. That is a social issue, because people should not feel threatened on the streets, but it is also an animal welfare issue. Many animal welfare issues are associated with those people who do not look after dogs, who do not treat them properly and who desocialise them.
I think that the Government will like the Bill for another reason. They have spoken about "One piece of legislation in, one piece of legislation out". The Bill is "One in and four out". It would get rid of the 1871 Act, the 1989 Act-that is not in the Bill at the moment but we will add it as an amendment-the 1991 Act and the amendment to that, the 1997 Act. People who have read the Bill who have no specialist knowledge understand the concept of what is proposed. That is important, because we have so many pieces of legislation that, often, those who are enforcing them do not understand what they are supposed to do.
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The purpose of the Bill is quite clear. It can be set out in three areas. The first is owner responsibility. That is key. Dog ownership is about owner responsibility. There are tens of thousands of strays on the street, but you do not hear about people being attacked by strays. Almost all the attacks-including, distressingly, the large number of attacks on children-are by dogs owned by people's relatives. It is about owners' responsibility. Anyone who has owned a dog will understand that owning a dog is not just a right, it has responsibilities associated with it.
The second fundamental aspect of the Bill is that it is targeting behaviour. It is not breed-specific; it covers any dog that can be dangerous. Quite a few laws around the world mirror our dangerous dogs legislation, and they contain a large list of breeds. It is interesting that in many places, many breeds are on those lists that people in this country would not associate with dangerous dogs, but, in other countries, they look at the number of dog attacks and say, "That is a dangerous dog". The real issue is that any dog can be a problem if it is desocialised and not trained properly. The Bill focuses on ensuring that owners understand their responsibility for ensuring that dogs are well looked after and trained properly.
The third aspect is that the Bill provides a better level of protection for the public. The purpose of the Bill is not to introduce yet more legislation that may do something. We know that a large number of dog attacks, and the worst dog attacks, come from dogs which have a history of anti-social behaviour which culminates in attacking people or-the worst thing-a child. We are trying with the Bill to start at the basic level to ensure that there is help for owners who have difficult dogs. The notice orders can start with very basic measures-ensuring that the owner keeps the dog on a lead or muzzled-but the Bill also covers prevention. One way to do that is to ensure that owners are pushed into having dog training. The dog training is not just aimed at the dog; it is also aimed at the owner. Dog training is as much about training the owner as about training the dog. Of course, there are further measures for those who break those provisions and for more serious attacks, leading to prison sentences or fines.
We need to start preventing dog attacks. We know that what we have at the moment is not working because the number of dog attacks is rising. The Bill addresses the issue of private property. I know that that is a very vexed area, but cases where children have been mauled-I could go through them, but I do not have time and people have read the papers-often happen on private property. It is unacceptable in today's society, when a child is attacked in a house, to say, "But it is private property. Therefore, there is no measure under the law by which we can bring a prosecution". As a former dog owner, I would find it difficult to leave a baby or a young child alone with almost any dog because there are risks associated with that. The owner has responsibilities. He cannot walk away and say, "God! I never knew that would happen. It was a lovely dog". Any dog can be very nice and have a bad day, especially when the child pokes it in the ear with a pencil.
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There are a couple of issues that the Bill is not about. We have tried to be as transparent as possible. This is not a covert way of introducing a hunting ban. This is focused on dogs attacking other dogs or people. One reason we are particularly concerned about dogs attacking other dogs is that that is a good indicator of dogs that are out of control. If you are a dog owner, you talk to everybody else in the areas where you walk the dog, especially in parks. You often find out that dogs that are not under control often attack other dogs, which can be a precursor for them attacking people. If we can get in at that stage, it would be a good preventive measure.
This is a difficult area. I must commend the work of all the groups we brought together to work on this. To mix my metaphors, talking about dogs legislation is a bit like herding cats. There are certain grey areas that will need to be looked at. I am happy to talk to Peers about working dogs so that we can make sure that we have not left any gaping holes in the legislation and that any changes made by the Bill would not be used as loopholes by anyone who misuses such amendments.
This is the Bill's second outing. I took it through the previous Parliament. I think that is an extremely good process because legislation that passes the first time can have many problems. We learnt a lot from taking the Bill through the first time and from talking to people. It is a bit like young men failing their driving test the first time; I think it should almost be obligatory because they tend to be better drivers the second time around.
There is a Defra consultation taking place at the moment, so the fact that the Bill will not come back to this House until after the summer will be useful because there were 4,000 responses. If Defra believes that the Bill reflects the view of the general public and the organisations that contributed to that consultation, it will be very positive.
This is not groundbreaking legislation. The Control of Dogs (Scotland) Act introduced control notices in Scotland and has proved to be quite successful. You can tell that an Act is reasonably successful when there are not masses of complaints when it is brought in and people believe that it is workable legislation.
I must now run through the clauses of the Bill and outline briefly its general aims. The Bill is promoted by the Dangerous Dogs Act Study Group, which comprises the leading animal welfare and veterinary organisations. It repeals all current legislation relating to dangerous dogs-thereby removing breed-specific legislation-introduces dog control notices in a legal sense and strengthens previous legislation to cover dog attacks in private as well as in public places to protect workers going about their business and families in their homes. I stress "workers going about their business". The CWU, which represents postal workers, reports 6,000 attacks on its members last year, which is a worrying statistic, particularly as some of the attacks were extremely serious.
Clause 1 defines the individual who is considered to be responsible for a dog. Clause 2(1) explains the actions that are prohibited when keeping a dog under control and extends responsibility to private property as well as public land. It sets out that encouraging a
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Clause 2(2) cites reasonable cause and is not exhaustive. It includes dogs provoked by a person or other animal used for lawful purposes, or dogs protecting their owner or property from a person who is entering a place that they are not permitted to be while committing an offence. Obviously that list is not comprehensive or exhaustive, but we have to base this Bill on common sense. These are common-sense defences for any dog acting in a certain way if provoked.
Clause 3 explains cause for issuing a dog control notice. It outlines that local authority officers will implement the law, but that they must have some previous knowledge or experience of dogs. I should say that we will be introducing an amendment which will not focus on just local authority representatives. We talked about local authorities because of the cost implications. Many issues will be based at a local level. However, we will introduce an amendment whereby the Secretary of State will be able to specify those parties which can issue control notices. Of course, the police will be included in that. Only the police will be able to carry out certain aspects, including entering private property, and there is a level of training that we will need to make sure is implemented.
Clause 4 outlines the requirements placed on an owner of a dog if he or she is issued with a dog control notice, the data that must be on the dog control notice and the requirement to permanently identify, via a microchip, the dog involved in the incident. This is one of the important aspects of the Bill. At the moment, one of the problems is linking dogs to their owners. The microchipping of the dogs will link dogs with problems to owners.
Clause 5 details the appeals process which must be followed by any person wanting to contest a dog control notice and outlines the court procedure should this take place. Clause 6 makes provision to local authorities regarding maintenance of the dog control notice database and sharing information with other relevant bodies. Clause 7 details penalties for non-compliance of a dog control notice, including criminal conviction, a fine, disqualification from owning or keeping a dog, or further dog control notices.
Clause 8 explains the conditions by which an authorised officer or local authority can vary or remove a dog control notice. Obviously, we will add a section about the "authorised officer" in the amendment. Clause 9 details the process by which a person is issued with a dog control notice and may apply for it to be varied or removed. Clause 10 imposes penalties for failure to comply with Clause 2, including a dog control order, a disqualification or deprivation order, a destruction order, a fine or a prison sentence. It also outlines the procedures that must be followed when issuing a deprivation, disqualification or destruction order.
Clause 11 outlines the police, local authority and court procedures when seizing or disposing of a dog involved in an offence with the focus being on best protecting the animal's welfare. Clause 12 repeals all
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I believe that this is a first step. Many people talk about going a lot further than this. However, we believe that this is a proportionate response. We know that the present system is not working. It has been given almost 20 years to work. It was amended once and still there are escalating costs. I remember the debates. If it had worked there would not be a pit bull in this country. We now know that there are far more legally owned pit bulls than there were when the Act was introduced. It has failed.
Some people would say that we need dog licensing. There is a problem with this. In a time of fiscal restraint, dog licensing would be an extremely expensive measure, and I do not believe that many people would take it forward. The Dogs Trust carried out a survey on the dog licensing regime in force in Northern Ireland and worked out that only around a third of dog owners actually have a dog licence. Responsible owners will take out a licence, but it will be ignored by others. Moreover, the real issue is that under the present legislation the dog licence could not be ring-fenced, so we could not pay for the licence using funds from dog owners, it would have to come out of general funding. I think that the Treasury would have an issue with that.
This Bill is supported by the Kennel Club, the Dogs Trust, Blue Cross, the British Veterinary Association, the Royal College of Veterinary Surgeons, Battersea Dogs and Cats Home, the Country Land and Business Association and many representatives from a number of local authorities throughout the country. Its purpose is simple. Under the old legislation, we put the responsibilities at the wrong end of the lead. This is about making sure that the responsibilities are not put on the dog, but on the owner at the other end of the lead. If people cannot be responsible for their dogs so that they are a danger to other animals and to people, they should not own a dog. I beg to move.
2.45 pm
Lord Mancroft: My Lords, I will keep my remarks as short as possible because, like other noble Lords, I like to get away to the country to walk my dogs. I recognise fully and agree with the purpose of my noble friend's Bill, and as I am sure are all noble Lords, I am grateful to him for the care and courtesy with which he has introduced it to us. It is perfectly clear that too many people in this country are attacked by dogs. What my noble friend did not mention is that there has been an incredible increase over the past year or two in attacks on horses by dogs. Again, that is unacceptable.
In my noble friend's introduction to the Bill there was an assumption, which I think is shared across the House, that the 1991 Act introduced by my noble friend Lord Baker, who sadly is not in his place, no longer works. I am not absolutely certain about that. No piece of legislation works perfectly, particularly in the area of criminal law. If it did, we would not have
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One attack by a dog is one too many, particularly on children. But I am not entirely convinced that these attacks have increased in number, although I am certainly clear that the sensationalist reporting of dog attacks has done so. I am not sure that the measure of increase indicates that the existing legislation has not worked. I am also not sure that the reason it has not worked as well as it should is that, as with so many other things, there has been poor enforcement. I am not wholly sure that the police and the Crown Prosecution Service across the country have used all the legislation they could-we have the 1871 Act, the 1991 Act, and the amendments introduced in 1997-which is a problem. Indeed, that is what the police sort of admitted when the previous Government looked into this before my noble friend introduced his Bill a year or so ago and therefore, indeed, before he was my noble friend. That is my suspicion, but we shall see as time goes by.
I turn to the primary offence set out in the Bill. As so often with these things, I am worried about the law of unintended consequences. Noble Lords should look at Clause 2, from which I will give one or two examples. Imagine that, as I often am, I am out walking with my dogs and it chases a squirrel or a bird. I can assure noble Lords that my dogs do that from time to time. Does that count as allowing a dog to be aggressive in a public place? I should have thought that it might do so. Imagine that I use dogs to kill rats, or to flush or hunt a rabbit. Does that count as allowing a dog to be aggressive in either a public or private place? It is not the private place I have a problem with. Would that count as encouraging a dog to be aggressive or intimidating with other animals?
Imagine that I am using dogs to flush animals for shooting, for falconry or indeed to retrieve birds. Am I encouraging my dog to be aggressive in a public place or to intimidate other animals? It is clear that on the ordinary meaning of the word "aggressive", using a terrier to kill a rat would be aggressive behaviour. Similarly, to intimidate another animal is to scare it, and dogs are used to flush or move other animals by causing them to be scared and therefore to engage their natural flight response from a perceived danger. Ultimately, it will be for the courts to interpret the meaning of the words "aggressive" and "intimidate", but their ordinary meanings would suggest that they could be widely applicable in the scenarios to which I have referred. In all those examples, I could be guilty of an offence.
The implications for the use of dogs in connection with shooting, agriculture and pest control are extremely serious. Unless an exemption is made for these lawful activities, the use of dogs in the situations I have mentioned would be difficult. My noble friend has said that he is prepared to look at this issue-I would be very happy to work with him on it-but it is a difficult area.
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Unless the Bill is suitably clarified it would render liable to prosecution the owners of dogs behaving in a perfectly natural way when out for a walk or when used in pest control, shooting and land management. I accept that the noble Lord's intention was not to incorporate legitimate and lawful activities in the scope of the proposed legislation-he and I have talked about this and so I know that is right-but at the moment the Bill is too widely drawn and needs amendment before ordinary dog owners, farmers, gamekeepers and shooters can feel secure in using their dogs without fear of the risk of prosecution.
It must also be remembered that private prosecutions could be brought under this legislation. Those could be malicious or motivated by disapproval of an otherwise lawful activity. It could also lead to complaints to police and local authorities, representing an additional burden on them and on the courts.
I received with great interest the brief from the Kennel Club and the Dangerous Dogs Act Study Group, to which my noble friend referred. It is a helpful and constructive letter and guides us on the way in which we should consider the Bill. In its letter of 28 June-which I imagine other noble Lords have also received-it states:
"Any new legislation should also embody the principle of 'deed not breed' and oppose breed specific legislation on the grounds that a dog's behaviour is influenced more by its environment, the training it receives and the responsibility of its owner, than it is by genetics (i.e. its breed or type)".
I am not absolutely certain that that is right. Environment and training are, of course, important, but do not discount genetics. My dogs are charming, affectionate and reasonably well trained, but I would not dream of walking them off a lead in a field of sheep because any amount of training I have given them would go straight out of the window. I am a responsible owner and I make sure that I do not do that but, however carefully I train them, the genes will take over and they will go.
Let me give a couple of examples. However carefully you train it, a Chihuahua will not make much of an attack dog; the genes are not there and nor is the size. On the other hand, however much you train it-and it is easy to train in many ways-you could not get a Rottweiler to flush or retrieve game because the genes will not allow it; it has been bred for different things. And you will never teach a greyhound to round up sheep-kill them, yes, but not round them up-because the genes will take over from the training. To discount the genetics and say that it is all about environment is simply not right.
As to the attacks to which my noble friend referred and quite rightly seeks to deal with in this Bill, when we drive around the streets of London we do not see these clearly thuggish people with huge chains, collars and leads walking Chihuahuas; they have pit bull-type terriers. I understand the difficulty of the breed route down which the Bill of my noble friend Lord Baker went, but breed is a significant factor. My noble friend referred to a small dog being poked with a pencil by a small child. Many people have said to their children, "If you do that he is going to bite you"-and, if they continue doing it, they usually do get bitten. It may be a nice dog-it is usually a nasty child, but that goes with the territory-but all dogs will do that. No matter
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As a consequence, we need to be a bit wary of totally abandoning the 1991 Act at this stage. Much of what my noble friend proposes in his Bill is very good. He talks about going for the irresponsible owner as opposed to the type of dog. I think that a combination of those might be the way to go. I have not been able to develop that thought, because it occurred to me only on the way down from Wilmslow on a train this morning. I can see some merit in that. I am wary of throwing out legislation wholly and putting new and untried legislation in its place. There is a significant number of dogs in this country which, however well trained, are very large, very frightening and extremely difficult to control. It is the people who get those kinds of dog that my noble friend's Bill attempts to address.
I have read horrible stories in the newspapers, as we all have. It appears that those people want to go off in the evening to do something and leave those dogs with a friend or a relative, who may-God forbid-sometimes have a child in the house. When something goes wrong in the heat of the late evening, the adult with whom the dog has been left-they may or may not be a responsible adult but, more importantly, they may not know the dog or dogs generally-cannot control it. That is when children get so horrifically injured. I know quite a lot about dogs and have spent most of my life with them, but I would not be able to control those kinds of dog either. So let us not abandon the breed-type of legislation wholly in favour of this approach. Can we in the mean time think about whether we could put them together in some way?
My final point, because I have gone on too long, is on prevention. Of course, we would like to prevent these things happening. Whether we stick with the old legislation or go with my noble friend's new legislation and, in a year or so, have a new Act on the statute book, I do not regard as prevention prosecuting the person after the event and taking the dog away. I should like us all to spend a little more time working out how we stop irresponsible people owning difficult dogs in the first place. The ideal would not be that we punished people after an attack had taken place; it would be that the attack did not take place. This Bill, much as I applaud my noble friend's efforts, does not address that.
2.57 pm
The Earl of Shrewsbury: My Lords, I, too, congratulate my noble friend Lord Redesdale on bringing this Bill to the House. I should declare an interest as an owner and keeper of working dogs, and I am a member of the Countryside Alliance, BASC and a number of other bodies which support field sports.
On 26 June, an article appeared in the Daily Mail. It referred to my noble friend Lord Redesdale and this Bill. I quote part of the article as follows:
hold on, I come from Staffordshire-
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- "leapt from the shadows and made to bite him on the bottom. The dog's owner looked on blithely, while the noble Lord hopped about the place like a cider-fuelled Morris dancer".
What a wonderful sight that must have been. Since reading that article, I now view my noble friend in a completely different light and I understand fully why he wishes to promote his Bill.
The last time I made a speech, I missed out page 3 and nobody noticed. I shall try not to make that error today.
While broadly welcoming my noble friend's Bill, I have a number of concerns about how, if enacted, it would work. I recognise that there exists a problem with dangerous dogs-we all know that-and especially status dogs, particularly, but not exclusively, in urban areas. Current legislation is adequate in general to deal with the problem-I agree with my noble friend Lord Mancroft that something must be done about preventing those accidents and attacks. I acknowledge that the real difficulty is in the enforcement of the legislation, a view which I believe is accepted by the police.
The Bill as currently drafted could well have unintended consequences for ordinary, responsible dog owners. For instance, Clause 13 states:
"For the purposes of this Act, a dog shall be regarded as having been involved in an attack if it has bitten, mauled or injured a person or another protected animal".
What about a sheepdog, which as part of its work nips a sheep on the hock? That sheep is quite difficult to get into a pen, but it is also a protected animal, and under this Bill it will be judged to have been in an attack. What about a Lancashire Heeler, whose method of herding cattle is to nip its heels? Under this Bill, it will be judged to have been in an attack-and so the list widens. For instance, if I am walking my dog along the River Dove in Derbyshire, where I fish, and my dog, Missed, usually impeccably behaved, chases a rabbit, will I be guilty under this Bill of having allowed my dog to be aggressive in a public or private place, as stated in the wording of the offences in Clause 2?
I am certain that my noble friend's intention was not to incorporate legitimate and lawful activities into the scope of this Bill, but, as drafted, the Bill is far too widely drawn and is in need of very substantial amendment, which your Lordships will no doubt address in Committee, if this Bill receives its Second Reading. Furthermore, this Bill removes all responsibility from the police and places the duty of enforcement on local authorities, while making no provision to allow either the police or other bodies to enforce the law and providing no additional financial support for local authorities. In these days of massive financial constraints, how on earth will local authorities be able to cope with that extra financial burden? Their animal welfare and dog warden services will already be hit hard by cutbacks, even before the consequences of this Bill land on them. The police are the acknowledged experts in this type of enforcement, so I was delighted by what my noble friend said about this in his opening remarks. Under this Bill, too, the courts will be clogged up when they are already under very severe pressure, and with even more financial consequences for the public purse.
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I could go on, but it is late, it is a Friday, and I want to get home to my wife and my dogs, absolutely in that order. I finish with a quote from Bertie Wooster, when he recalls Stiffy Byng's Scotch terrier, Bartholomew. He says:
"Stop me if I've told you this before, but once when I was up at Oxford and chatting on the river bank with a girl called something that's slipped my mind there was a sound of barking and a great hefty dog of the Hound of the Baskervilles type came galloping at me, obviously intent on mayhem, its whole aspect that of a dog that has no use for Woosters. And I was just commending my soul to God and thinking that this was where my new flannel trousers got about thirty bobs' worth of value bitten out of them, when the girl, waiting till she saw the whites of its eyes, with extraordinary presence of mind opened a coloured Japanese umbrella in the animal's face. Upon which, with a startled exclamation it did three back somersaults and retired into private life".
This Bill needs such an enormous amount of improvement that maybe it should be retired into private life.
3.02 pm
Lord Addington: My Lords, legislation about dogs seems to be something of a parliamentary graveyard, to be perfectly honest. We have tried it several times and we have got it wrong on several occasions. My noble friend's Bill has one underlying merit; it acknowledges the fact that it is an incredibly difficult field and tries to deal with what we have got wrong before. It addresses the primary problem that was raised last time. I was not quite so new to the House, although I believe that my noble friend had taken over from me in the role that I always defined as "baby Peer" in the days when the hereditaries were in more of a majority-although this debate is a bit of a throwback to those days.
We did not really take on board the fact that the owner is the main control mechanism for a dog. The fact of the matter is that a dog is an animal that works with dominance and in packs. We are allowed to keep them because they accept us as dominant members of their pack. Thus you have a dog that will do roughly what you want it to do, if you are prepared to control and discipline it. That is why the emphasis in the Bill on the owner as controller of the dog is probably a more sensible approach that gives greater scope for getting it right. I hear what my noble friend Lord Mancroft says-that the genetics of the dog are important. We have spent we do not know how many tens or hundreds of thousands of years making dogs fit certain roles by selective breeding, but certain dogs will always be worse at certain things. Labradors may bite people but they do not do as much damage as Rottweilers.
There is certainly a degree of logic in my noble friend's approach, but the fact is that even a comparatively soft and small dog like a Spaniel can still do a lot of damage if it clamps on to you; they have incredibly powerful jaws.
On the points made by my noble friends, and by other noble Lords who are friends, about what constitutes a dog "being aggressive", anyone who knows anything about animals would say, "Oh, that couldn't possibly be included". Then you think about how legal action has been taken; there have been vexatious or uninformed cases. Greater clarification might be needed here.
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The basic thrust of my noble friend's Bill may actually allow us to make progress and produce better law. My personal preference would be for a licence fee with some dedicated enforcement process behind it involving people who were informed and trained. However, I do not think that that is possible with the current financial situation; indeed, it is outwith the scope of a Private Member's Bill.
Having got that off my chest, I want to say that my noble friend's approach on this probably has a line that we can follow. Let us not pretend for one minute that any piece of legislation will stop people occasionally getting bitten by dogs. I have seen children who regarded dogs as animated teddy bears and think that giving them a nice, big, friendly cuddle around the throat is a good thing. Then, when it growls at them to stop, they think they have hit the play mechanism inside it and that is clearly powered by a battery. Most dogs will growl, run away or occasionally nip. If the dog does something more or catches the child in the wrong way, damage will be done. We must bear in mind that people should supervise both the dog and the child in those situations.
We must take into account that, as has been said before, dogs chase things. I own an enthusiastic terrier that knew that bunnies' heads were detachable the minute it first saw one. Although she is an enthusiastic member of the breed, she is not unique. We must bear this in mind in legislation.
When the Minister replies, I hope that he will have some information about the Government's approach to this and whether they are prepared to back any form of fine tuning of the current legislation in the foreseeable future. If they have a major complaint about the approach in my noble friend's Bill, I would be interested to hear it. What we currently have has not worked.
The status of dogs seems to be mentioned in law to prohibit them. I had a little exchange about fashion history a couple of days ago in this Chamber. The fashion in what looks tough walking on four legs in the street beside you is equally applicable here. When I was young, Rottweilers were not on the scene but Dobermans and Alsatians certainly were. We should be looking to move forward to something that will lead to the streets being slightly safer, is enforceable and takes into account the nature of the dog. My noble friend's Bill certainly points the way to an achievable goal.
3.09 pm
Lord Grantchester: The Dangerous Dogs Act 1991 has attracted notoriety as a primary example of flawed legislation. It bears the hallmarks of being produced as a hurried response to a public outcry for action following a number of dog attacks, largely by pit bull-type dogs. Despite this, nearly 20 years later we are still trying to find a better answer to regulate the interaction between man and his best friend, the dog. I pay tribute to the noble Lord, Lord Redesdale, for his constant championing of a better control regime over many years. I declare my interest as a farmer in Cheshire, albeit one without a dog, although I have worked with farm dogs in the past.
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Since the law has fallen into disrepute here, it behoves us to improve matters. The Dangerous Dogs Act has failed to ban the ownership of four extreme types of dog. Indeed, through the index of exempted dogs, it sends out a mixed message. Under Section 1, the number of convictions for ownership has risen from 17 in 2004 to 115 in 2008, while the number of dogs added to the exempt list has risen over the two years from 2007 to 2009 from 185 to 396. This position has arisen as a consequence of the Dangerous Dogs (Amendment) Act 1997, which repealed the mandatory destruction orders, provided that certain necessary conditions are met.
Following yet further high profile dog attacks in 2006, the legislation was reviewed by Defra in 2007. After extensive consultations with the Association of Chief Police Officers, the Royal Society for the Prevention of Cruelty to Animals and the Dogs Trust, it was concluded that the current legislation was sufficiently robust to deal effectively with the problem. This was despite the cogent championing by many organisations that the Act's basis of targeting breeds or breed types was the wrong approach, and the deed of the dog-from a lack of control or the irresponsible action of the owners-was the nub of the problem.
Since 2007, there has been a further explosion of attacks and ownership, brought about by the trend in gang culture to own such dogs as status dogs and use them in gang-related crime, drug dealing and anti-social behaviour. In response, the Metropolitan Police set up the Status Dogs Unit in March 2009. Defra announced funding in July 2009 to train designated dog legislation officers and issued extensive guidance and best practice notes to a wide range of audiences, including the courts, local authority officers, housing officers and the police, as well as pet owners. It has been difficult to obtain information and figures to reveal the extent and size of the problem as there are no centrally collected figures on the number of dogs seized or destroyed. The costs of law enforcement are also difficult to obtain as police forces do not appear to have separate budget provision for dealing with dangerous dogs. However, there are significant costs associated with inspecting premises, transport, veterinary fees, kennelling, prosecution and expert witness costs, as well as extensive court time.
Just recently there have been yet more tragic cases of dog attacks. I am indebted to Constable Kerr of Merseyside Police, who put me in touch with Chief Inspector Martin Woosey to update me on the position on Merseyside. In recent years, Merseyside Police have started recording information. Seizure of dogs averages around 150 dogs a year. Since 30 November 2009, under Section 1, "Ownership", and Section 3, "Dogs Dangerously Out of Control", Merseyside Police have received 988 calls from members of the public, and there have been a further 1,000 dog-related incidents where search warrants were obtained to enter premises. On 30 November 2009, John-Paul Massey, a four year-old boy, was mauled to death at his grandmother's house, while she was babysitting, by a dog belonging to the boy's uncle who lived with the boy's grandmother. Less than three years earlier, a five year-old, Ellie Lawrenson, died in similar circumstances in St Helens. These are tragic circumstances.
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In 2009, 69 dogs were destroyed and in the period since the death of John-Paul Massey, of 311 dogs seized, 105 have been destroyed. At any one time around 80 dogs will be in kennels, with many having been kennelled for over 12 months, not only at considerable cost but with increasing welfare fears and associated veterinary attention. Merseyside Police have nine specially trained dog legislation officers. In comparison, the Metropolitan Police have seized 1,152 dogs in the 2009-10 financial year. In the four-year period 2004 to 2008, the RSPCA reported a 12-fold increase in reports of dog fighting, which can range from accidental scraps to organised fights, with the majority of incidents concerning anti-social behaviour with dogs.
The Guide Dogs for the Blind Association reports that, sadly, 61 per cent of attacks on guide dogs occurred when the guide dog was in harness by other dogs overwhelmingly off the lead and in public places. At present, dog-on-dog attacks usually come under the Dogs Act 1871 when only civil sanctions apply.
The problem legislation has to contend with is that this is not a single issue. Dogs that show aggression in the home, dogs that present a danger to the public and other dogs in accessible places and dogs that are kept as a status symbol pose differing risk analyses and demand differing solutions. While primarily an urban issue, dog control is becoming a more pressing problem in rural areas, with a lack of appreciation by walkers that their dogs can cause disease as well as distress to livestock. Neospora Caninum is spread by dog mess, increasing the chances of abortion in affected cattle, and more crucially leading to a 95 per cent chance that the disease will be vertically transmitted in-utero from cow to calf, rendering the breeding potential of the female virtually worthless. However, the legislation must not inadvertently affect the legitimate activities of working dogs on farms.
Dog control notices were introduced by the Clean Neighbourhoods and Environment Act 2005, and relate to any dog being in a certain public place and being prohibited from doing certain things. Control of dogs, although covered in a variety of ways, is thus at best a patchwork; at worst, it results in poor dog welfare and in extreme cases poses a real risk to public safety.
The noble Lord, Lord Redesdale, has admirably spoken to his Bill. It very logically follows the Control of Dogs (Scotland) Act of April 2010 passed by the Scottish Parliament. The Bill of the noble Lord, Lord Redesdale, will remove the focus from breeds and instead will make owners responsible for the behaviour of their dogs by focusing on "deed not breed". It also extends the coverage of the 1991 Act to any place rather than just public places. It will build in England on the new regime of dog control orders, which will enable local authorities to impose requirements on the dog owner where that person has failed to keep the dog under proper control. Where failure occurs, dog control notices will provide a range of sanctions, including destruction of the dog and disqualification from ownership and keeping an animal.
On behalf of these Benches, I largely support these provisions. In drawing up his Bill, the noble Lord, Lord Redesdale, has been very ably supported by the Dangerous Dogs Act Study Group, made up, I believe,
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In response to the growing concern over public safety issues and to improve animal welfare, Defra went out to consultation in March 2010, which has only just recently closed. The DDA study group has largely been in unison with its submissions. However, in drilling down into the detail of further measures to control dogs, there is a divergence of views regarding the use of licensing, micro-chipping and guidance improvements. The responses to the consultation have also revealed a sharp divergence of views between the DDA study group, the RSPCA and ACPO. This was highlighted as well in the Control of Dogs (Scotland) Act 2010. This Act, in contrast to the Bill of the noble Lord, Lord Redesdale, and along with the RSPCA/ACPO position does not remove the ban on the four breed types included under Section 1 of the Dangerous Dogs Act 1991. Furthermore, the RSPCA, in conjunction with ACPO, has submitted to Defra a rival Bill which is seriously divergent in its provisions from the Bill before your Lordships today. From these Benches, we would need to examine in some detail the discrepancies between the two Bills. For this Bill today to proceed through Committee, comprehensive analysis would need to be undertaken to assess whether there could be a "hybridisation" or joined-up approach to the issues. Would the Minister in his reply clarify what policy would guide his department, what cost analysis would be undertaken in regard to the various submissions, and whether and to what degree it would be necessary or advantageous to have a common regime with the devolved Administrations?
I have identified a few crucial differences between the Bill today and the RSPCA draft Bill. They are, first, the retention or not of Section 1 of the Dangerous Dogs Act 1991 regarding the banning of various breed types. I have sympathy for the view that although breed-specific legislation is incorrect and unjust, it provides a preventive framework and effective approach against this extreme type of dog that can cause death and severe injury.
The second fundamental difference between the Bills relates to responsibility for administration of the control regime. The noble Lord's Bill places responsibility in the hands of local authorities, whereas the RSPCA draft Bill has as an "authorised officer" either a police constable or local authority officer. The noble Lord outlined in his introduction that he would bring in an amendment to reconcile these two positions. In his reply, will the noble Lord explain whether and how wide he consulted among police authorities and local authorities on the provisions of his Bill?
Thirdly, there are discrepancies regarding the reintroduction of a dog licence and consequential databases, whether to cover all dogs, pedigree dogs with a breed characteristic with health issues or only dogs under control notices.
The fourth difference is the extent to which microchipping will be applicable to dogs and, lastly, there is a difference in the level of fines for breaches
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The RSPCA has written in its briefing that it cannot support the Bill before your Lordships as it believes that it would be a retrograde step for human safety and animal welfare. It comments that the Bill does not have a genuine preventive approach to ensure that owners of dogs would be more responsible. The provisions of the Bill are reactive-they relate to when an incident has occurred. The RSPCA believes that early intervention is crucial in improving standards and preventing serious and fatal incidents. Speaking more generally, what assessment have the exponents of this Bill undertaken in regard to its effect on magistrates' courts? One of the major concerns relates to the potential impact on welfare and costs, should all appeals and prosecutions be taken through the courts.
For these Benches therefore, this Bill faces severe challenges. It would be unwise for the law on dog control to be brought into further disrepute by being pressed into a partial solution by the hasty consideration brought about by this Bill.
3.23 pm
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley): My Lords, I offer my congratulations to my noble friend Lord Redesdale on introducing the Bill, on giving us an opportunity to discuss these matters, and on his detailed explanation of just what the Bill does. I should also remind the House-as the noble Lord, Lord Grantchester, did, and as I did the other day on a Question on this matter-that there has been a public consultation on dangerous dogs which focused specifically on whether the current laws need to be changed. That consultation was issued by the previous Administration on 9 March this year. It closed on 1 June and we have received in the order of 4,250 responses. The most important point I have to make is that we will carefully consider those responses before deciding what action the Government need to take to deal with this problem. For that reason, I will make it clear now that, as is traditional, although we will not oppose this Bill, we will not offer it our support.
I turn now to the specific points. The first is the question of whether we should have breed-specific legislation and whether the 1991 and 1997 Acts should be repealed. We believe that it is not necessary to remove breed-specific legislation. We often hear the cliché-it was repeated by my noble friend-that that was a knee-jerk reaction that has failed to prevent people owning such dogs. However, the provision on pit bulls and other dogs identified as having characteristics bred for fighting is necessary. I appreciate that there are a number of very vocal critics of breed-specific legislation, and I respect the sincerity of their views, but I am not convinced by the assertion that Parliament
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We are as Ministers frequently criticised in the press-as were previous Ministers-for not having tighter dog control laws, and we regularly receive much correspondence requesting that all bull breeds, for example, are added to the list of prohibited breeds. This request is frequently mirrored in the media. Questions about both extending and repealing breed-specific legislation were raised in the consultation that I and the noble Lord, Lord Grantchester, referred to, and it would not be appropriate at this stage to offer detailed comment on what was said in the responses. However, we are in routine contact with the police. I assure the noble Lord, Lord Grantchester, that Defra consulted every force in England and Wales in 2007, and both the Association of Chief Police Officers and a number of individual forces have responded to the most recent consultation. The view of the police is that without breed-specific legislation, and more specifically the prohibition on pit bull terrier-type dogs, there would have been many more attacks.
As my noble friend Lord Redesdale put it, any dog can attack anyone. That is absolutely right and no one would dispute it. That is why Section 3 of the Dangerous Dogs Act applies to all dogs regardless of breed. However, it would be irresponsible to pretend that some dogs are not far more capable than others of inflicting life-changing injuries when they attack.
I will deal briefly with a number of problems in the Bill that have been highlighted, in particular by my noble friends Lord Mancroft and Lord Shrewsbury. My noble friend Lord Redesdale's Bill would also make it an offence to own a dog that had attacked a person or a protected animal. Making it an offence to own a dog that has attacked a person or a protected animal might criminalise a great deal of very minor incidents. My noble friend Lord Shrewsbury made the point that a very small dog nipping someone's fingers might have to be destroyed merely because someone brought an action as a result of that. The current law allows each case to be assessed individually, and we believe that that is correct. As I have said, all dogs can bite. It is unfortunate but, even with the most responsible owner, it can happen. The balance of the current law, which allows each incident to be judged individually, is probably correct, and I would need further persuasion before I could support a proposal that would trigger a disproportionate action for every minor incident. Nevertheless, it is a matter that we will bear in mind when we look at what has been said in the responses.
The noble Lord, echoing the Scotland Act, would like to introduce dog control notices. I will make two important points about that Act. My noble friend Lord Redesdale said that the Scotland Act had not received much opposition, but I remind him that it does not come into force until February of next year, and one might see a slightly different attitude to it when that happens. The other point is that the Act does not repeal the 1991 Act and retains breed-specific legislation. Those two points should be borne in mind when anyone considers that Act.
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As I said, the Act comes into force next year and will introduce a provision similar to that proposed by my noble friend on dog control notices. We accept that such notices have the potential to be a useful tool that could provide an intermediate step preventing a dog from becoming dangerously out of control. Likewise, they could also provide a way of monitoring those who persistently have problems controlling their dogs.
Again, however, it is important that we review the consultation responses on this matter. We should also use the opportunity to observe how these notices are implemented in Scotland before deciding on their appropriateness for England and Wales. This is one of those occasions when, if the devolved Administrations move in one direction, there is no reason why we should move too fast; we can watch what they do and see how it works.
The Bill would also make it a criminal offence to allow a dog to be dangerously out of control in a private place where the dog is permitted to be. That is another option that was raised in the recent consultation and which we are considering seriously. Various noble Lords rightly mentioned that point, which we will look at carefully. When the 1991 Act was debated in Parliament, attacks on private premises where a dog was permitted to be were not deemed to be suitable to be made a criminal offence. That was because Parliament did not want to create a situation where a home owner could potentially be prosecuted should the household dog bite a burglar. In the main, we think that biting burglars is no bad thing, but others might have different views. I appreciate the fact that the Bill attempts to remedy that by proposing an exemption in the event that a dog attacks with "reasonable cause". That "reasonable cause" is then given further definitions, one of which is,
- "if ... the person attacked was in a place where the person was not permitted to be and was committing an offence for which the penalty could be a custodial sentence".
I appreciate that such exemptions are a sensitive matter, but we do not agree with any legislation that would essentially legalise any dog being dangerously out of control and attacking somebody, albeit a burglar. Again, we will have to look at that.
There are one or two other matters about which we have some concerns. For example, Clause 2(1)(b) appears to tackle cases where dogs are used to intimidate people. I think that we can all agree that the use of dogs in such a manner is reprehensible. However, there are injunctions in the Policing and Crime Act 2009-my noble friend Lord Shrewsbury rightly drew the House's attention to the rather large number of policing, crime and criminal justice Acts that emanated from the party opposite, which we shall try not to emulate-that address that problem and can prevent gang members from being in charge of an animal in a public place where it has been proven that the gang member has engaged in, encouraged or assisted gang-related violence. Likewise, we can use more mature legislation, such as the well tried and tested Offences Against the Person Act 1861, where an animal is deliberately used as a weapon to injure somebody.
That is a fairly brief gallop through some of our concerns about the Bill. I entirely understand the thrust of what my noble friend is trying to do and the
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3.33 pm
Lord Redesdale: My Lords, perhaps I should start with the Minister's response. I have put forward a large number of Private Member's Bills, many of which have failed to get through, but elements of many of them have been turned into law. The point that I want to make to all noble Lords is that the Bill is not being brought forward in a rush; hundreds and hundreds of hours have been spent in consultation with many experts in the area looking at the precise questions that the noble Lord, Lord Mancroft, asked. Those are the real issues. We know what the problems are out there; many of our experts have looked at them and have asked what the potential solutions are.
The Minister made a number of points, one of which was the question of owning a dog that attacks someone without reasonable cause. However, the important point here is that we have to act in a preventive way. We have to try to intervene before these horrific attacks take place.
The Minister mentioned private property, which is an extremely vexed issue. However, I come back to the case raised by the noble Lord, Lord Grantchester, of John-Paul Massey. My first point is that the dogs involved in that case probably fall under Section 1 of the Act, so using it as an example of an attack shows how badly the Act has failed. The second point is that there were two instances where action could have been taken but was not. I am not saying that this Bill would have stopped the attack but it would have provided a point of intervention. The real issue that I have with many of the reasons that have been put forward for opposing the Bill is that, year on year, more and more attacks are occurring and they are costing an incredible amount of money, as is the Act itself.
As many noble Lords have said, the Act is failing. I am not saying that this Private Member's Bill is perfect, and I very much understand the Minister's point about looking at the Defra consultation and bringing forward the results. The Minister said that he was not going to make any decisions until he had read the consultation. Obviously, that consultation paper was drafted by another Government. However, I should very much like to know the results of it because I think that many of the points raised by the Bill will be central elements in the responses to that consultation.
The noble Lord, Lord Mancroft, referred to the increase in the number of attacks, and I shall very happily write to him with that information. He also mentioned attacks on squirrels. I am well known for
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The noble Lord, Lord Mancroft, said that it was a matter of genetics, and I totally agree. You would not let a whippet run around in a field full of sheep but the point is that it is the owner who is letting the dog off the lead. Therefore, the Bill says that the owner is responsible and that it would be irresponsible to let certain dogs off the lead in a field full of sheep. That issue was raised by the noble Lord, Lord Grantchester, and I totally agree with him. It is about making sure that dog owners are responsible. I have been shocked by how few dog owners in the countryside are responsible; they feel that they almost have a right not to be responsible for their dogs.
As the noble Earl, Lord Shewsbury, pointed out, there is an issue about dogs going about their duty, and that needs to be looked at. Clause 2(3) deals with reasonable cause. There has to be a level of common sense, as there has to be in implementing any legislation.
I thank my noble friend Lord Addington for supporting the legislation. A large number of issues need to be considered. However, we know that there is a problem. Pretending that it is not costing an enormous amount of money and that we cannot do anything is a failure. There will be more attacks. I was struck by the support of the Guide Dogs for the Blind Association and the concern about the increasing attacks on guide dogs by other dogs. The RSPCA has raised its own proposed legislation in the same way that I know the Minister has raised issues with this measure. I know that the RSPCA, which refers to licensing, would receive exactly the same response from the Minister. I am not disheartened by his view that the Government will not jump to support a Private Member's Bill.
However, elements of this Bill could be taken forward. After the summer and after the Minister has had the chance to read the results of the consultation, I hope very much that we will be able to meet some of his officials to work through some of the concerns that he expressed about the Bill. I think that we can come to the Committee stage to see whether the elements that we all know need to be brought forward to help to prevent attacks on people, dogs-and children-can be discussed. I have introduced a few Private Member's Bills in my time, especially on Fridays-not to a packed audience it has to be said-and I would love the Minister to say, "You have got it exactly right. We will have one of those and it will go on to the statute book".
That is not how legislation works and it is certainly not how legislation should work. It is very important that we listen to the views of noble Lords about where there are failings and how to avoid the law of unintended consequences. That was one of the major problems with the Dangerous Dogs Act 1991. Because people were scared of pit bulls the Bill moved through far too quickly. Anyone who talked against it was seen as almost dangerous and irresponsible. We know that that has failed and that something must be done. The
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Bill read a second time and committed to a Committee of the Whole House.
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