Hunting Bill

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Mr. Cawsey: It was not funny.

Mr. Öpik: I do not laugh, especially with animal welfare considerations in mind. The owner of the pet seems to be the only member of the Committee laughing. He said that the dog had run underground and had been attacked by a rat.

It would be very unfortunate if a gentleman like the hon. Member for Brigg and Goole, for whom I have great respect, were to be criminalised simply because his dog followed its natural instincts. Perhaps the dog was playing a game of hide and seek with the hon. Gentleman. Why any pet should wish to hide from as lovable an owner, I do not know. [Interruption.] The Parliamentary Secretary should not be the only hon. Member who is flattered from the Opposition Benches. It seems a little unfair.

Mrs. Golding: I thank the hon. and gracious Gentleman for giving way. Rats go in streams and rivers. The Bill does not say ``underground''; it says ``below ground''. Rivers are below ground and on top of the ground. What does that mean?

Mr. Öpik: My hon. Friend makes a good point.

In all seriousness, the example relating to the hon. Member for Brigg and Goole underlines the serious concern that all that would stand between his prosecution and his acquittal would be his ability to prove that he did not intentionally allow his dog to go underground and attack the rat.

5.30 pm

As my right hon. Friend the Member for Berwick-upon-Tweed and others have underlined, we believe that that is an extremely difficult thing to do. In the light of the amendments that were not carried, it seems that there is no insurance policy for individuals such as the hon. Member for Brigg and Goole that would significantly increase their chances of evading a criminal conviction.

My hon. Friend the Member for Newcastle-under-Lyme made an important point. The phrase ``below ground'' is too imprecise to be used as a basis for criminal liability. As she said, what is ``below ground''? A culvert, a woodpile or a dip in the ground could theoretically be argued to be such, as could an old railway tunnel, a pipe or a river. We do not have a sufficiently clear definition at this stage to be able to answer that. Not only that; plenty of above-ground structures are just as constricting as those below ground.

To give another example, if one goes ratting on the first floor of a building, presumably that would be legitimate because it is not a below-ground structure, but if the dog tears off down the steps into the cellar, does that mean that the person who is ratting is committing a criminal offence? We have discussed the matter at some length. Hon. Members will recall those debates, but this is the point at which we might want to deal with it by way of amendment.

The Committee will remember that we ended up in a rather strange debate where the Minister attempted to define what that meant. He implied that one needed to have soil above one's head to be underground. Does that mean that, in a cellar that extends under my garden, I have to draw a line along the ground and affix a lead so that the dog can go only as far as that line? If the rat runs under the extent of my garden and the dog chases it, will I be breaking the law? That sounds a fatuous point, but a judge's responsibility is to apply the law, not to judge its sense. There is insensibility in that part of the Bill, which could cause difficulty.

There is another obvious question. If a dog were to chase a rat underground, would it be acceptable to dig a hole vertically above the rat and to drop a dog into it on the grounds that the soil is not above the rat's head? Those points need to be dealt with. Will the Parliamentary Secretary assure us on the matter? As it stands and given the extent of the previous debates on that point, I remain concerned that merely hoping that legal precedent will resolve the issue is a dangerous way to proceed, not least because we will make criminals out of people acting with good intent, whom a judge simply cannot acquit because, technically, it would be absolutely clear to the judge that, regardless of the intent, the individual had laid themselves open to a criminal prosecution.

Furthermore, the Bill as it stands is illogical because it allows ferrets to be used below ground, but not dogs. Rodent control, for example, is often carried out by ferrets, yet the Bill prohibits only the use of terriers underground. There can be no reason for that contradiction, except perhaps a genuinely innocent oversight by the supporters of the Bill. Again, that issue could be resolved. I would not want to second-guess the intent of Deadline 2000. Between now and Tuesday, the Minister may have to consult the supporters of the Bill to understand what the position is. As it stands, there is no philosophical consistency in allowing the use of ferrets, but not terriers.

The restriction on using terriers underground for rodent control also runs counter to the Home Office's stated recognition of the need to control rodents. I refer hon. Members to a letter from the Minister to the Countryside Alliance on 30 November 2000. It said that

    ``rats are a health hazard and a pest and that dogs are an effective means of keeping numbers down. The Prevention of Damage by Pests Act 1949 places obligation on both local authorities and occupiers of land to take steps to secure as far as is practicable that land is kept free from rats and mice. These obligations are absolute. Therefore we do not think there should be any limitation in respect of rodent hunting.''

That runs counter to the arrangement through which terriers—a heavily used resource in rodent control—will be banned. Perhaps the Parliamentary Secretary could explain what appears to be a contradiction. If left untouched, the provision would seem to go against her guidance to others who have inquired about the issue.

There are also some practical considerations. The National Working Terrier Federation is a professional body that attempts to regulate the use of terriers through a self-disciplining code, to which individual terrier men and women sign up and adhere. The federation states:

    ``The role of the terrier is to locate the quarry below ground and to bark at it continuously, either causing it to leave the earth, or alternatively to indicate where in the earth the quarry is located, in order that it can be dug to and dispatched. Terriers are also used to locate and flush quarry above ground and in dense cover.''

In other words, the federation claims that a terrier can be trained not to attack a fox underground. Indeed, it can control and highlight the position of the fox through non-violent means.

It is here that matters become equivocal. Burns expressed some concerns. In fairness, plenty of evidence was submitted to sustain both pro and anti-terrier work positions. I have talked to the likes of Barry Wade, who is one of the more prominent terrier men, and huntsmen such as David Jones, who has done much to inform my understanding of the issue. My suspicion is that a middle ground—I use the phrase advisedly, but it does seem appropriate—probably exists. Some terrier men have managed to train their terriers to operate in a professional way. If one thinks about the matter, it will be clear that no one who owns an effective terrier will want it to get torn up in underground fights. One would expect ageing terriers to show signs of damage from such incidents. Indeed, some terriers do, but others that are 10, 11 or 12-years-old do not. My tentative conclusion, therefore, is that some terriers can indeed be trained not to attack adult foxes.

I should be interested and grateful to hear the views of other members of the Committee, particularly of those who support a ban. As I have said, my conclusion is evidential and not based on a priori grounds or a fundamental principle, but are we justified in banning an activity for which there is only equivocal evidence? Moreover, there is fairly strong evidence that, in the right hands, a terrier can be trained not to attack an adult fox underground.

The National Gamekeepers Organisation stated:

    ``Gamekeepers use terriers to locate and/or bolt foxes, and sometimes mink, from underground. Terriers are normally used in conjunction with nets, guns and/or other dogs.''

Crucially, it continues:

    ``Terriers are the only legal means of dealing with foxes that have taken refuge underground.''

Therefore, it is not just the National Working Terrier Federation that feels that way. Given the consistency of the position taken by individual organisations that deal with terrier work, I ask the Parliamentary Secretary to reflect on those points and to justify why she and the Government believe that it is reasonable to ban terrier work. Does she believe that there are no contradictions? Alternatively, does she agree that there are indeed contradictions—many of which concern fox control and the welfare of the fox itself—but that she can live with them?

The National Farmers Union states:

    ``This restriction''—

the ban—

    ``would seriously compromise effective fox control. Although the explanatory notes to the Bill suggest that a person would not be guilty of an offence `if his dog has other ideas and acts outside the scope of the exception', any value in the stalking and flushing out exception would be rendered useless by a fox going to ground.''

In this set of concerns and contradictions, the contradiction that I am highlighting is that those activities will be severely restricted and, in some cases, prohibited if underground dog work is not permitted. Without going through the entire argument again, I simply cite our long debate on what happens if a dog persistently goes underground because of his natural instinct, even if the owner does not encourage it to do so. In addition, many people, certainly in places such as upland mid-Wales, believe that terrier work is a vital ingredient in the control of foxes. I believe that there is a case to answer. How would the Parliamentary Secretary describe what seems to be a circle of activities that are permitted within the Bill, one element of which is prohibited—the terrier work?

An even more serious concern is that the welfare of foxes might be compromised if dogs cannot be used underground. Professor Macdonald, who was commissioned by the Burns inquiry to look into population management and control of quarry species, said:

    ``Even if a rifle is used to kill adult foxes at the earth, there is a case to be made on welfare grounds that terriers should be used subsequently to ensure that cubs are not left without parental care.''

That is a slightly gruesome aspect and perhaps one of the most emotive elements. If one killed a vixen that had cubs, the cubs could easily starve to death underground. I think that most of us would agree that that would be a horrible way to go. Terriers are often used to dispatch the orphaned offspring quickly and efficiently. A terrier will more comfortably attack cubs because they are very small; they are not adult size.

The matter was raised with the Scottish Society for the Protection of Animals, which gave oral evidence to the Scottish Parliament's Rural Affairs Committee in connection with Lord Watson's Protection of Wild Mammals (Scotland) Bill on 21 November 2000. Richard Lochhead MSP asked:

    ``Do you think that sending terriers underground is more cruel than leaving cubs to starve to death?''

The SSPCA's chief executive, James Morris, replied:

    ``If terriers were sent underground only to kill cubs there would be no cruelty to the cubs and the terriers would not suffer any damage.''

It was a clear exchange between an interrogator in the Scottish Parliament, who asked a neutral question, and the chief executive of what is perhaps the main animal welfare organisation in Scotland, who, with conditions, said that there were some circumstances in which the use of terriers would be justified on animal welfare grounds. Furthermore, two days later—I imagine for absolute clarity on the point—the SSPCA issued a statement, which is available to all members of the Committee on request. I shall simply read the crucial two paragraphs from it. They say:

    ``The Scottish SPCA is opposed to the use of terriers underground. However, the Society accepts that, under current conditions, dependent cubs are at risk when a vixen is shot in springtime. The prospect of cubs starving to death below ground is unacceptable in welfare terms.

    For this reason and in the absence of a close season, the Society was reluctantly obliged to concede the use of terriers to despatch cubs. Even this carries a risk to the terrier encountering a vixen attempting to protect her cubs.''

That is not a ringing endorsement of terrier work and is as equivocal as Lord Burns, but it shows that the SSPCA has come to the reluctant conclusion that, in some circumstances, it would be tolerable to use terriers, in this case in the interests of animal welfare. I shall read one other important extract:

    ``The Society accepts that gamekeepers and farmers do not wish to cause animals unnecessary suffering. The traditional practices such as terrier work are vulnerable to abuse by individuals who wish to see fights between foxes and dogs.''

That is a further equivocation about the issue. I do not want to dredge up the details of the Middle Way Group schedule, but that is precisely why we felt that it was necessary to have a strict regulatory framework for the use of terriers. It is regrettable, given the spirit of this debate, that we are not in a position to reintroduce all of that policy in order to right that wrong. Our amendments go as far as the SSPCA in trying to resolve those issues.

5.45 pm

It is important to recognise that what I am discussing does not contradict the spirit of schedule 3 as it stands now. A phrase that is often quoted—I have seen it in the papers again in the past two days—is that we cannot license cruelty. We can debate that, but we can license an activity and that is what we are discussing. It could not be called licensing—there is no regulation to go with it—but the schedule allows the use of falconry, guns and so forth for the control of rats and a number of other activities that inflict suffering on animals. There is no reason in principle why terrier work should necessarily be singled out as an activity that needs to be banned. As such, taking into consideration animal welfare and accepting that there is a balance of evidence on terrier work, some hon. Members may be influenced to think again about the way in which the Bill is laid out on that issue. A balance has to be struck and, leaving aside the civil liberties issues that were discussed on the Floor of the House, animal welfare should be seriously considered.

I look forward to hearing what other hon. Members have to say, but I hope that the arguments that I have advanced, whether one agrees with them or not, are at least internally consistent. If one accepts the assumptions of the SSPCA, terrier men and others, there is no open-and-shut case for banning terrier work. Perhaps some form of regulation would be preferable.

I shall direct my final question to the Parliamentary Secretary. Given the case that I have put forward and on the basis of what others on both sides say, I should be interested to know if she were willing to reflect on whether the Bill goes too far on terrier work and whether the amendments, including the cave amendment, perhaps make it a little more balanced, sensible and workable, but also more fair. As it stands, given the difficulties with the slightly inflexible approach to dogs underground, I am concerned that the schedule will serve neither the interests of animal welfare, nor the interests of pest control.

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