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Lord Haskel: My Lords, before the Minister sits down, will he please confirm that, where he uses the word "plans" about various franchises, there is no obligation on that franchisee to invest in new rolling stock?

Viscount Goschen: My Lords, it depends on the basis upon which the franchise has been awarded. Indeed, in some of the new franchises, the Franchising Director has stated that they have been awarded on the basis of there being a certain commitment as regards new rolling stock. However, in other cases, the new franchise operator has made commitments to certain levels of investment. He is committed to the level of

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service but has also said that he will put services on top of that. It all depends on the detail of the franchise agreement between the Franchising Director and the rail operating company.

7.53 p.m.

Lord Clinton-Davis: My Lords, I should like to thank all speakers who contributed to our interesting debate. We have heard some outstanding speeches. Perhaps I may congratulate my noble friends Lord Haskel, Lord Berkeley, Lord Ewing and, indeed, my noble friend Lord Carmichael of Kelvingrove for their speeches. However, if one were to give a "man-of-the-match" award, I believe that it would have to be awarded to a woman on this occasion. Indeed, it would be my noble friend Lady Castle who spoke not only with great experience as a former Minister of Transport--and an outstanding one at that--but also with wit and penetrating good sense. Long may my noble friend be able to make such contributions to our debates in this House.

This Government really have illusions or delusions of adequacy. Indeed, that was reflected with great charm by the Minister who has just responded and for whom I have great admiration. The noble Viscount maintains an ability to whistle in the dark to keep up his spirits. However, he lives in a fanciful world of assertion and of hope. I do not disagree with him as regards living in a world of hope, but he is going to be disappointed.

In relation to the railways, the Minister and his colleagues have revealed in this House, elsewhere and in the other place a vivid example of what is tantamount to a scorched-earth policy. It will not fall to them to rebuild. They are on the way out: new Labour is on the way in. Having said that, I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.

Dogs (Fouling of Land) Bill

7.55 p.m.

The Earl of Northesk: My Lords, I beg to move that this Bill be now read a second time. Your Lordships may recall that I was responsible for bringing forward a very similar Bill last year. That Bill ran out of time, but I take this occasion to congratulate my honourable friend, Mr. Andrew Hunter, on being successful in the ballot in another place, thereby giving us another opportunity to consider this important measure.

There are two points that I should like to stress at the outset. First, the concept of requiring owners to clean up after their dogs is not in any sense new. Local authorities can and do control dog fouling by by-laws and have been doing so for around 60 years. However, that control has proved less than satisfactory for local authorities and dog owners alike. It is worth noting that there still exist some by-laws which make it an offence to foul, whether or not the owner removes the faeces. Almost all of those older by-laws will be superseded under the Bill. I am sure that your Lordships will

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welcome that fact. The Bill will not entirely replace the by-law system, but it will streamline the administration process very considerably.

Secondly, support for the Bill is not only very widely based; it is also very well informed. It comes not only from local authorities but also from dog owners and from bodies such as the Pet Advisory Committee, which represents almost every major organisation which has anything to do with dogs, the NFU and the Tidy Britain Group. I ask noble Lords to bear those point in mind when considering the Bill.

As the previous Bill was so recently debated in this House, I shall not detain your Lordships with a lengthy explanation of the Bill's provisions. I shall, instead, outline what the Bill seeks to achieve and go on to explain how the Bill differs from the one previously considered.

The Bill creates an offence of failing to clear up after one's dog if it fouls on land designated by a unitary authority or a district council in England, or by a county or a county borough council in Wales. These councils will be able to designate, subject to certain exceptions,


    "land which is open to the air",
and to which the public are permitted, or are entitled to have, access. I should emphasise that at present a local authority can adopt a by-law to create such an offence but then has to seek the Secretary of State's confirmation of the by-law. The complexity of the system, with its 11 by-law enabling powers, is compounded because, for places like parks and open spaces, each piece of land has to be separately identified in the by-law. As I indicated, the Bill will streamline that administrative process.

The Bill introduces a fixed penalty which offenders can be given the option of paying within 14 days instead of being prosecuted. That is based on the litter fixed penalty and is entirely consistent with the 1994 recommendations of the Litter Advisory Group. With a fixed penalty in place, local authorities will be in a position to enforce the offence without having to take every offender to court. If a person declines to pay the fixed penalty, the local authority has the option to prosecute, but I understand that the experience of the litter fixed penalty is that over 90 per cent. are paid within the 14-day period.

Turning to the changes from the previous Bill, I should explain that the Bill has been recast and the clauses are now in a slightly different order, although for the most part they have the same effect. The most significant changes are contained in a new Clause 1. This clause prevents the designation by local authorities of certain types of land. These exceptions are carriageways with a speed limit of more than 40 miles per hour and land running alongside them; land used for agriculture or for woodlands; land which is predominantly marshland, moor or heath, and rural common land. The broad thrust of the exceptions is to prevent designations in the open countryside. This is a sensible change which recognises the difference between the urban and rural environments and seeks to address the concerns expressed by some noble Lords last year.

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There was some debate in another place about whether there should be other types of land which local authorities could not designate. The Bill was amended at a late stage to remove the blanket exclusion of land in national parks. I think that was right. The Bill already provides for a wide range of places where the Bill's provisions cannot apply. The effect of the national park exclusion would have been to prevent local authorities designating land in towns and villages within national parks. Other types of land such as land used for agriculture, land which is predominantly marshland, moor or heath, and rural common land are already excluded.

There was also discussion about whether there should be an exclusion for bridleways and various types of footpaths. I think we are in danger here of getting bogged down in unnecessary detail. The power under which by-laws are made for footpaths and other rights of way is Section 235 of the Local Government Act 1972. This is an extremely broad enabling power which is not related to type of land or ownership. I was reassured to hear my honourable friend the Minister in another place say that he was not aware of a problem of by-laws being imposed inappropriately on footpaths and long distance ways by local authorities under existing legislation.

It was also suggested that there would be problems about boundaries between land where the Bill applied and land where the Bill did not. This happens now with by-laws and is a feature of any legislation that affects some but not all land. I think it must be for local authorities to be clear when they describe designated land.

A further new feature in Clause 1 allows a person entitled to exercise powers of regulation of land conferred by a private Act to exclude the application of the Bill to that land by notice to the local authority. It is right that where Parliament has given a power of regulation under a private Act, a local authority should not impose the new system against the will of the person exercising that power. They may well wish to continue to control dogs on the land by their own by-laws and this change would allow them so to do.

Clause 2 of the Bill enables local authorities to designate land to which the Bill applies. In the previous Bill the Secretary of State was given the power to make regulations to prescribe the form of designation order and the procedures to be followed in the making of such orders. The regulations could also include provision requiring local authorities to publicise the making and effect of such orders. There was no requirement for the Secretary of State to make such regulations, although my noble friend the Minister indicated that it was the intention of the Government to do so.

During the Committee stage of the previous incarnation of the Bill I accepted an amendment to require the Secretary of State to make regulations. This has been carried forward into the new Bill, but in addition the regulations must now include provision requiring publicity. This is sensible as it ensures that not only will there be a standard procedure set nationally but also that there will be a requirement for publicising designations.

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Clause 3 sets out the offence of failing to clear up after one's dog forthwith. There is a blanket exclusion for registered blind people but although there was much discussion in another place about other exemptions, the Bill before us has no others. Both my honourable friend the Member for Basingstoke and the Minister strongly opposed the idea of a list of exemptions. It could not be complete and there would always be an element of controversy concerning selection. They felt that the defence of reasonable excuse covered any circumstance where the Bill's provisions were likely to be considered unreasonable. I concur with that approach.

Clause 6, which deals with the effect of the Bill on by-laws, differs from the equivalent provision in the previous Bill in two main respects. First, the Bill's provisions will no longer automatically overtake by-laws made by councils other than those able to make designations, although if a designation is made, then the by-law has no effect. This is important as it will allow dog fouling by-laws made by county and parish councils in England and community councils in Wales to continue where there has been no designation. This applies even after 10 years when all designating councils' by-laws will cease to have effect in relation to land which can be designated.

Secondly, the Bill allows local authorities to retain by-laws on land where designations cannot be made because of the exclusions set out in Clause 1. These changes are entirely reasonable. I believe that the Bill before us today is a great improvement on the one we considered last year and meets the concerns expressed about the inappropriateness of applying the offence in the rural environment. It is a measured response to a problem of considerable and growing concern. Dog owners do not have some God-given right to allow their dogs to foul public places without taking responsibility for the resultant mess. The responsible dog owner who does not allow his dog to foul in public places or clears up any mess need not fear the Bill. It is the irresponsible owner at whom it is aimed. It is an important measure which simplifies and rationalises control of dog fouling and, in time, will largely replace the existing system of dog fouling by-laws. It emphasises the idea of being a responsible dog owner.

As I mentioned earlier, support for the Bill comes not only from local authorities, which have to deal with the mess in public places as well as the complaints, but also from the dog interests, notably the Pet Advisory Committee which represents almost every major organisation which has anything to do with dogs. I beg to move.

Moved, That the Bill be now read a second time.--(The Earl of Northesk.)

8.7 p.m.

The Earl of Harrowby: My Lords, I must start by making an apology in that I must leave this Chamber by 9.15 in order to catch my last train to a destination 160 miles north of here. I shall certainly read with great care everything that has been said in case I miss anything.

I do not want it to be thought that I am against the Bill in principle. I certainly am not. I accept that a large number of your Lordships and a large measure of the

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population require such a Bill. I have no axe to grind. However, I have serious concerns about the kernel of the Bill which is Clause 1. I am concerned about the likely difficulty of interpretation. The only people I can imagine will benefit directly from it are practitioners in magistrates' courts.

In the other place this Bill received virtually no attention at Committee stage. It was discussed in a matter of minutes with about two or three people present. It received no serious attention until the Report stage when it was debated for three solid hours. In my view that debate was a complete tangle. Anyone who thinks that the interpretation by the courts or by anyone else of Clause 1 of this Bill will be easy has only to spend perhaps an hour reading that debate in Hansard to realise just what difficulties can, and undoubtedly will, arise.

I shall not be entirely negative. I do not wish to be negative as I recognise the demand for movement on this subject. However, I have a few points to make. What does one do about Hampstead Heath, which is partly woodland? What does one do about Richmond Park, which is partly woodland? What does one do about woodland? The Minister in the other place defined woodland, after some pressing; but there was no clear answer at the end of the debate. Let us remember that it is not the Minister's Bill. It is a Private Member's Bill although it is drafted by the Department of the Environment. The definition given by Mr. Clappison in another place referred to commercially operated woodland. I submit to noble Lords that that is nonsense. It is nonsense so far as concerns Richmond and Hampstead, and as regards dog owners. In particular, it is nonsense with regard to Moseley Bog, in the suburbs of Birmingham. My honourable friend in another place, Mr. Hargreaves, is the Member for Hall Green. Moseley Bog is beloved either by his dogs or by his constituents' dogs. I have given an illustration of the difficulty of interpreting Clause 1.

There are other illustrations. What about riding stables in the middle of a village? I realise that my noble friend will say that we are not referring to stables but to dogs. However, riding stables invariably have dogs, and so forth. The point is relevant. What about dog breeders who exercise numbers of dogs together? What about the growing commercial operation whereby people exercise dogs in groups for old people? Do they chase one dog to see what it is doing while they have four others hanging around? It may sound amusing, but the Bill has to deal with such a situation. I do not believe that the Bill as drafted is the way to do so.

There may be adequate answers to some of these points, but perhaps I may refer to hunts. They present another difficulty. I object to the inclusion in the Bill of a reference to privately-owned land, or to the need to opt out if one is a private owner. It should be a question of opting in. A private owner is perfectly capable of making his own rules on the subject. Many private owners give access to the public. Many, especially in urban areas, might wish to make their own rules. They may wish to use the Bill, but I do not think that

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stipulation within the Bill is right. Exactly the same point applies to regulators as regards private Acts and public land.

It is all very well for my noble friend who promotes the Bill to say that he does not wish to go into details. However, in legislation one has to foresee situations which may arise. Someone has to interpret the measure. For instance, let us consider canal paths with grass verges, with designated or undesignated land just beyond. When a dog fouls the footpath, there may be a need to clear up, whereas on the grass verge there is none; and on the other side again there is a need to do so.

Two aspects have never been discussed during debate on the old Bill or the new Bill. First, I refer to the question of trespass. I shall deal with the other point later. However, under the by-law authorised by the Bill, or the action of the local authority authorised by the Bill, one might commit a different offence in pursuance of the obligations under this Bill; namely, one might commit a trespass. Such matters have to be sorted out.

At col. 639 of the Official Report, Commons, of 22nd March 1996, in replying to Mr. Fabricant, my Member of Parliament, Mr. Hargreaves stated:


    "Had he been at Crufts last weekend and met members of the Kennel Club and others, such as breeders, he would realise that, although there is general support for the Bill's principles, there is serious concern about its scope".
I believe that that is a valid point which noble Lords will need to take into account when considering the Bill in detail.

A number of Members, including the son of my noble friend who sits on my right, made the point during debate that they were unable to give the Bill totally adequate attention both in detail and in general. They looked to this House to debate the Bill and to produce a presentable piece of legislation on the statute book. In my submission, we must look afresh at Clause 1. It is nonsense as drafted. Ninety-five per cent. of the problem arises as a result of highly populated areas. We must concentrate on that 95 per cent. figure and get the provision right. We can leave the remainder to local authorities to deal with as they think best under the more cumbersome original by-laws. I do not suggest for a moment that there are no needs, but to seek to define them in this Bill would be dangerous and illogical.

I propose some measure along the following lines: that Clause 1 should cover public land, and public land only, within X hundred metres of any area of Y housing density. Housing density is a well known formula in various local authority Acts. Therefore one concentrates on urban areas and a small fringe around them. Everywhere else is left to the local authority to decide in the light of circumstances. I believe that there is a case for public land--I repeat, only public land--being blanket-covered by such legislation.

As noble Lords will have gathered, my main concern is as regards Clause 1. However, I wish to make a few remarks on Clause 3. One subject has not been touched on. I hope that noble Lords will forgive the lack of delicacy in your Lordships' House. I refer to

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diarrhoea--and dogs get diarrhoea, as I know to my cost. That subject must be considered. It may be impractical to deal with faeces in that situation.

I am not sure whether there is adequate exemption for dogs used for sporting purposes. I referred to this point at Committee stage of the old Bill. I am quite sure that there is inadequate provision as regards children exercising dogs--and children frequently exercise dogs. Further attention needs to be paid to presenting children with such an obligation.

I am worried about the reliance on "a reasonable excuse" which my noble friend mentioned. For several reasons it is not an adequate way of dealing with the problem. I can foresee endless arguments about what is reasonable and whether blindness and old age are covered. In particular, I do not fancy the possibility of an old lady of 80 with arthritis having to go to the magistrates' court. The situation could arise where a park keeper or someone responsible had had a bad morning, having got up with a hangover. The old lady might have to prove in court that she had a reasonable excuse: that she was too old and could not bend down or some similar reason. That aspect of the Bill requires further attention. I also believe that a maximum fine of £1,000 on a first offence is excessive.

The implication in the Explanatory Memorandum is that the Bill would cost the public purse nothing. If that includes the local authority purse, if local authorities quite rightly wish to make use of the Bill, whether or not it is amended, it would not cost very little, it would cost a great deal. I can envisage horse patrols round Richmond Park or similar activities as an excuse for a jolly time.

I hope that my noble friend will consider my remarks carefully. I have a horrible feeling that he will not because they have all been made before in the other place. The Bill has useful purposes; but it requires careful consideration at Committee and later stages. I do not believe that it is right at the moment. It will lead to much trouble for individuals and magistrates' courts.

I hope your Lordships will forgive me for taking up so much time. I am not a dog owner but I feel strongly about allowing on to the statute book a Bill which I foresee will be ineffective and troublesome.

8.23 p.m.

The Earl of Bradford: My Lords, first I should declare my personal interest in the Bill as a member of the Policy Advisory Committee of the Tidy Britain Group and also chairman of its West Midlands Consultative Committee. I should like to congratulate my noble friend Lord Northesk on bringing the Bill to your Lordships' House.

In an ideal world people would happily accept responsibility for the litter problems that they create. Sadly, as we all know, this is seldom the case and all too often the perpetrator tends to react violently when his misdeed is pointed out to him. This was pointedly, and nearly painfully, apparent to me on one occasion, just round the corner from your Lordships' House. I was at a standstill in my car in a queue on the Embankment when a lorry driver chucked a cigarette packet out of his

8 May 1996 : Column 188

cab window. I leapt out of my car and at the third attempt managed to throw the packet back into his cab and suggested, helpfully, that he put it into a litter bin instead. Alas, he obviously did not appreciate my concerned assistance, because as we rounded the bend into Parliament Square he managed very accurately to discard his cigarette directly into the air intake of my car, filling the vehicle with smoke and bringing me very quickly to a halt.

While human beings should be required to behave less anti-socially, dogs cannot be expected to control themselves to man's satisfaction. Unfortunately, and all too frequently, an owner will make that standard statement, "time to take the dog out to do its business". Too few will take a pooper scooper out with them to ensure proper clearance afterwards.

How often I have wandered happily around town only to find on stepping inside someone's house that I have brought in an unfortunate and definitely unwanted visitor with me. There is even a danger of injury from slipping over on a faeces-strewn skidpan of a pavement that is too frequently encountered and where the unnatural hazard is not easily spotted after dark. Even worse are the health worries, particularly for young children in parkland and play areas.

The public's concern about the matter was clearly highlighted in the Tidy Britain Group's attitude and awareness survey of litter and the environment of September 1995. In the survey dog fouling topped the list of concerns with a response of 74 per cent., compared with vandalism at 72 per cent. and littered streets at 56 per cent., while graffiti registered 36 per cent. We should certainly not belittle those other problems, but obviously that demonstrates where the greatest distress is caused.

The excellent purpose of the Bill is to simplify and to strengthen powers that already exist. For the Department of the Environment, it reduces a considerable amount of wasted time and expense, as present by-laws take anything up to three years to be processed. In the case of local authorities, among whose officers the Tidy Britain Group found that over 90 per cent. were wholeheartedly in favour, it creates a standardised offence: that faeces must be removed forthwith. It allows blanket designation of areas; for example, all public open spaces. At present, those areas to which by-laws apply have to be listed individually.

Most importantly for local authorities, it saves administrative time, expense and unnecessary bureaucracy, as they will no longer have to gain the approval of the Department of the Environment but can adopt measures themselves. Lastly, it speeds up the whole process enormously for them, although of course they must still go through all the usual procedures and systems, like advertising their intentions, passing proposals through appropriate committees and presenting them to the full council.

For the public, it at last gives a simple message that dog owners will now become responsible for clearing up the mess that their pets produce. Owners will still have every chance to object to proposed action in their local area. However, they are likely to find that they will

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have to bow to overwhelming pressure from others. I hope that on this occasion sense will prevail and parliamentary time will be on our side and that Britain will be able to continue the slow process of becoming a cleaner and more pleasant land for all of us to live in.

8.27 p.m.

Lord Jenkin of Roding: My Lords, I apologise for intervening in the gap, but owing to my incompetence yesterday I failed to give notice that I wished to speak on the Second Reading of the Bill. Like others, I congratulate my noble friend Lord Northesk on bringing the matter forward again in an obviously significantly improved form, compared with the previous Bill. I listened with great interest to my noble friend Lord Harrowby who seemed to have several points which will need to be addressed during the Committee stage.

My excuse for intervening, I hope briefly, is that in another place I represented the constituency of Wanstead & Woodford. Several parts of Epping Forest were included. Epping Forest was a substantial amenity for the whole of east and north-east London; "a lung for London" was a phrase frequently used. The forest's history goes back to the Epping Forest Act of 1878; it was constituted by Act of Parliament. The conservators who run Epping Forest are currently the Corporation of the City of London. I am sure that the noble Lord, Lord Graham of Edmonton, will remember occasions when that remarkable Member of Parliament, Arthur Lewis, not normally an admirer of the Establishment, used to stand up in another place and sing the praises of the corporation for what it did for Epping Forest, on the fringe of his constituency. Indeed, all the Members representing constituencies in that area owed the conservators and the City of London Corporation a great deal for its magnificent administration of what is now six-and-a-half thousand acres of forest.

The Bill as originally introduced allowed local authorities to designate land such as Epping Forest under the provisions of Clause 1, whether the managers of the land--in this case the conservators, who are also the owners--wanted it or not. One has only to examine it to see what the effect of that might have been. The effect of designation would be to take the responsibility for enforcing the anti-dog fouling provisions out of the conservators' (the corporation's) hands and give that function to the local authorities for the areas concerned.

That may seem a perfectly simple proposition. However, an area like Epping Forest lies within a number of different local authorities. The boundaries follow absolutely no defined line across the forest. There would therefore be considerable doubt as to which local authorities would be responsible for policing in a particular area. It would give rise to the possibility of different sets of officials from different local authorities attempting to enforce anti-dog fouling laws on different parts of the same open space owned by the corporation. Apart from being quite extraordinarily bureaucratic, this would give rise to all sorts of difficulties, as I say, in

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regard to boundaries. Epping Forest extends from well into north Essex right down to the London Borough of Newham.

A further difficulty, therefore, in applying the legislation on such land as this is that it would give rise to a sort of patchwork quilt effect. Parts of the land would not be subject to the dog fouling offence even if the land was designated. That could not possibly be a recipe for efficient enforcement.

The matter goes further than that. Where parts of Epping Forest are already subject to dog fouling by-laws, the Bill would have compounded the problems. A good example of the kind of land I have in mind is West Ham Park. That lies to the south of the Wanstead Flats and within the borough of Newham. There is a scheme in the park imposed under the powers of the private Act. The corporation's staff enforce the scheme as part of their normal keeper duties. Under the Bill as it was originally presented to Parliament, the local authority would have become the designating authority. Once the land was designated, it would be subject to the new dog fouling offence created by the Bill, and the corporation's own by-laws would cease to have effect. Then, those new laws could be enforced only by the staff of the London Borough of Newham. The situation would have arisen whereby the corporation's staff would have to sit on their hands so far as dog fouling controls were concerned, leaving a second lot of officials to carry out the functions under the Act. That would be wholly inappropriate and would probably result in the laws not being enforced at all.

Happily, in another place those difficulties were recognised and Clause 1(4) of the Bill that is now before us deals with the matter. Clause 1(4) would in effect allow the corporation, as owners and conservators, to decide whether the Bill should apply in its open spaces.

My noble friend Lord Harrowby, as I understood him, was critical of that provision. I shall want to examine carefully why he felt that position was wrong. It may be that it can be framed in some other way. However, as I hope I have persuaded the House, without such a clause one would be landed with a considerable bureaucratic mess. I am happy to give way to my noble friend.


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