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House of Lords

Friday, 9th March 2001.

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

Prayers--Read by the Lord Bishop of Bristol.

Wild Mammals (Protection) (Amendment) Bill [H.L.]

11.5 a.m.

Lord Donoughue My Lords, I beg to move that this Bill be now read a second time.

The present arrangements for protecting animals from abuse are complex and incomplete. They reflect nearly a century of sporadic legislation, especially the Protection of Animals Act 1911, which absorbed earlier legislation dating as far back as the 18th century and which has itself since been amended nine times. That was concerned primarily with captive and domestic animals where humans have responsibility, not with wild animals, and hunting and coursing were exempt. Cruelty was defined as "unnecessary suffering".

Since then, Parliament has passed, as examples, the Protection of Badgers Act 1992, which I noted created some problems for my former colleagues at MAFF, and particularly the Wild Mammals Act 1996, to which my Bill today is an amendment. The 1996 Act also began as a Private Member's Bill under John McFall. It had two objectives: to prevent cruelty to non-captive wild animals; and to ban hunting. That second part fell so it remained as an anti-cruelty Act.

It had, I believe, two disadvantages. It contained a long list of specified cruel acts, which left grey areas around and between the list; for example, nailing a fox was an offence but shooting it to wound and be left in agony was not. It also contained a list of exemptions. It may help the House if I read out the offence created in the 1996 Act, although it is long and horrifying:

    "If, save as permitted by this Act, any person mutilates, kicks, beats, nails or otherwise impales, stabs, burns, stones, crushes, drowns, drags or asphyxiates any wild mammal with intent to inflict unnecessary suffering he shall be guilty of an offence".

It seemed fairly comprehensive but there were many exemptions, including hunting and coursing.

My Bill today is deliberately simpler than that 1996 Act. It aims at one stroke to protect wild animals from suffering. There will be no exemptions. The existing exemptions for hunting, shooting and coursing are removed, as are exemptions relating to snaring and trapping. So is the use of poison to kill wild mammals, although it is not intended to protect local rats. Simply, if a wild mammal is deliberately made to suffer unnecessary suffering, that is an offence.

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The Bill is firmly rooted in the excellent Burns report. Chapter 9, page 152, paragraph 9.38 states:

    "One other possible legislative approach would be to remove the present exemptions for hunting in the Wild Mammals (Protection) Act 1996. This would give an important signal that hunting should be subject to the same standards as apply to other organisations and individuals. And it would give a clearer opportunity to test views about cruelty in the courts".

We take up that Burns suggestion.

The one reservation expressed in the Burns report was that most of those acts on the list in the 1996 Bill do not apply in hunting; exactly. That is why I replace that list with a single, simple, comprehensive offence. Clause 1 of my Bill states that,

    "any person who intentionally inflicts, or causes or procures, unnecessary suffering on or to any wild mammal shall be guilty of an offence".

That replaces the 1996 list and so, I trust, meets the Burns reservation and overall, it is in line with the Burns report.

The Bill then goes on to remove the exemptions for hunting and so on as stated in paragraphs (b), (d) and (e) of Clause 2 of the 1996 Act.

The advantages of my Bill are clear. It creates consistent and universal minimum standards to protect all wild mammals. It provides certainty and clarity, with no exceptions or grey areas. There is no list of barbarous acts, as in the previous legislation, with scope to create new cruelties outside the list. It is simply intentionally inflicting, causing or procuring unnecessary suffering which is criminal.

Because it is simple, policing should be easier. The Bill would modernise and pull together nearly a century of piecemeal legislation. Of course, I recognise and accept that nature--those who live in Tower Hamlets may not be aware of this--unavoidably involves some suffering. It is not possible to eliminate all suffering from rural life and that suffering will appear to be cruel. The Bill enshrines in legislation that it is suffering which is deliberate, intentional, excessive and unnecessary which is unacceptable and will be prosecuted.

The Bill does not assume or establish that the simple pursuit of properly organised hunting, without specific acts of cruelty, such as digging out and so on, set out in Burns, is committing an act of cruelty. However, it would be for the courts to decide, as Burns suggests, with which I would be happy. I do not believe that that is a disadvantage in the Bill. It is quite normal for legislation to be tested in the courts and we should all be happy with that.

I turn to the sub-theme of the concerto, the Bill's relationship to hunting and to the Bill that will come before the House next week. First, I declare some interests or potential interests. I am involved with two racehorses that run under National Hunt rules. If God is kind, one will run tomorrow at Sandown. Racing will be damaged by a total ban, so I have a position on that.

I also have a shotgun, although it is not used greatly, and a licence. It is mainly reserved for pests, such as rats, magpies and intrusive journalists! I was also a

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Minister for agriculture and I am deeply concerned with the countryside in which I grew up. I have been a member of the Countryside Alliance, although I take no part in the direction of its affairs, I disagree with some of its political activities and I shall not vote for its option on the Hunting Bill next week. I have never hunted; nor will I ever hunt. As we appear to be expected to say where we come from, I tell the House that I come from rural Northamptonshire. I dislike cruelty to animals. My dog, Honey, is very close to me--I dare not say "the closest" because others may hear. I support the countryside and I am deeply concerned about the future of National Hunt racing.

On the Hunting Bill, I believe that my Bill forbidding unnecessary cruelty will be of interest to many noble Lords involved in Monday's debate, although it does not stem from that Bill. There are those who will consider voting to ban hunting because they deplore individual acts of cruelty in hunting, as I and many in hunting do, yet quite rightly they have doubts on libertarian grounds because they are reluctant to interfere in the traditional sports and life of the countryside.

This Bill will forbid and punish deliberate and excessive cruelty in hunting--it removes its exemption--but it will leave that sport to continue in the proper and legitimate way, without unnecessary cruelty, if the courts so conclude. After all, some solicitors--I say "some", unwilling to offend friends--regularly defraud their clients, but that is not a justification for a ban on practising the law, although many may sympathise with that approach for other reasons.

This Bill could link naturally to the middle-way option on the Hunting Bill for a licensing authority in a way that would strengthen that approach, give it teeth and reinforce that option by providing a basis on which licences may be withheld or withdrawn; for example, if a master, a member or an employee of a hunt were found guilty of inflicting deliberate and unnecessary cruelty under the Bill, the licensing authority would consider that when issuing a licence.

I admit that this Bill would make the middle-way option more credible and practical, although I should like to insist that the Bill is desirable in itself, without any reference to the hunting issue, because it criminalises unnecessary cruelty. With that in mind, the Bill has been drafted so that it could, if the House wanted, be moved and adopted later as an amendment to the Hunting Bill.

I need not point out in detail to my noble friend the Minister the political advantages to the present Government of this Bill--although I shall. Currently they are under pressure from a militant minority to impose an illiberal ban on countryside people pursuing their traditional sports at a time when the countryside is already suffering quite enough. We know that only a small minority cares strongly either way on this issue, although a significant number reluctantly are inclined to support an illiberal ban, not because they want a total ban, but because they want to stop incidents of unnecessary cruelty in hunting.

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This Bill offers a compromise way forward. It bans unnecessary and intentional cruelty in hunting, but it leaves the properly regulated pursuit of the sport to continue if the courts so choose. It will do nothing to satisfy the extremists on one side, who basically hate country people who hunt. I am not sure whether they hate cruelty because they are willing to hit country people over the head with baseball bats. It will do nothing for that side. In my view, nothing will influence that minority. Nor will it satisfy some traditional extremists who want hunting to be exempt from all constraints on cruelty.

I make no appeal to either militant sect and I hope that the Minister is not of either tendency. However, I believe that this Bill will satisfy the large majority in the middle ground. Taken together with the licensing option, it would enable the Government to move forward with greater protection for wild animals, without falling into the hands of an illiberal, extreme minority.

The main purpose of the Bill is much wider than hunting. It is justified regardless of what happens to the Hunting Bill. I believe that it will provide a significant improvement and modernisation to our legislation to protect mammals and to regulate relations between man and mammals in the wild. As such I ask the House, the Minister and the Government to view this Bill positively. I am confident that as an intelligent man my noble friend the Minister will not come forward with a hoary old Whitehall spectre, with which all Ministers and former Ministers are familiar. I refer to that of "opening Pandora's Box". Like "the slippery slope", it has been used throughout Whitehall history and throughout the "Yes Minister" series as an obstacle to any desirable reform where rational arguments are lacking. I confess that I was a regular and, I believe, chief adviser to the "Yes Minister" and "Yes Prime Minister" series. We found that whenever Sir Humphrey lacked an argument to resist the Minister or Prime Minister, he could refer to "opening Pandora's Box" or "going down the slippery slope".

The Bill is not a Pandora's Box. It is a limited Bill, opening up a new horizon but a limited and desirable one. It does not apply to farm animals; pets; domestic animals; birds; fish; and laboratory experiments. It applies only to wild mammals and only to the unnecessary excesses in the method of killing--that is, "how"--and not to the intention--that is, "why". The only Pandora's Box concerns whether there is proof of deliberate and unnecessary cruelty.

My Bill might also raise further questions; for example, why Britain lacks the desirable legislation on wild animal management, which many other countries have. But that is beyond the scope of today's discussion. The Bill aims, simply and effectively, to ban deliberate and unnecessary cruelty to wild animals. I trust everybody who deplores such cruelty will support the Bill. I commend the Bill to the House.

Moved, That the Bill be now read a second time.--(Lord Donoughue.)

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11.22 a.m.

Lord Mancroft: My Lords, the House should be grateful to the noble Lord, Lord Donoughue, for promoting this Bill today in such a clear and concise manner. I certainly extend a cautious welcome to the Bill.

As a board member of the Countryside Alliance, I am pleased to declare my interest. The Countryside Alliance has a particular interest in animal welfare, both in terms of domestic and farm animals and in respect of wildlife, and our policy handbook makes that clear.

I, too, have taken a special interest in the subject and I have been involved in most of the relevant debates in this House during the past decade. In particular, I was involved in the passage of the 1996 Act, originally a Private Member's Bill introduced into the other place by Mr Alan Meale, and its forerunner in the previous year, in the shape of another Private Member's Bill sponsored by Mr John McFall. I was also involved in the passage of the Protection of Badger Setts Bill, which was later consolidated into the Protection of Badgers Act 1992.

The debate comes at a very interesting time. On Monday we shall be having the Second Reading of the Hunting Bill, and many of the issues raised here today will be relevant to that debate. Bearing in mind the strong opposition that I voiced in respect of some parts of the original 1996 Act, it may surprise your Lordships to know that the Countryside Alliance broadly welcomes this Bill. It may, therefore be instructive to look for a moment at the history of the original Act.

As the noble Lord, Lord Donoughue, told us, the original Act began life as a Private Member's Bill in the other place. It was primarily a Bill to ban hunting but with other welfare measures tacked on it. It was deemed to be unacceptable to your Lordships in its original form and the anti-hunting measures were removed to allow its safe passage through this House. It was therefore somewhat of a lopsided Bill. At the same time the general offence of deliberately inflicting unnecessary cruelty was taken from the Protection of Animals Act 1911, which is still the principle piece of animal welfare legislation in Britain.

However, that primary offence of intentionally causing unnecessary suffering was deemed too wide to be included in the 1996 Act without qualification and therefore the list referred to by the noble Lord, Lord Donoughue, added to it. Exemptions were included in the Act at Section 2(b). Looking at this again with the benefit of hindsight it seems, not to put too fine a point on it, a little bizarre. The idea that anyone would commit any of the acts listed in Section 1 during the course of the sporting or pest control activities listed in Section 2(b) is not credible. But the reason the exception was thought to be desirable is part of the recent history of animal welfare legislation. The constant battle over hunting has meant that for years we have been unable to make improvements to the law relating to animal welfare. And the ridiculous thing is that even the anti-hunting lobby now admits that hunting is, in welfare terms, an insignificant issue.

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The Home Secretary set up the Burns inquiry to inform the debate on hunting. Apart from achieving that, it has also helped those of us who were already fairly well informed to clarify our thinking. Certainly those of us who are involved in the hunting debate have benefited from the process. And it is important to remember that the Countryside Alliance is not a single-issue group, as some of our opponents seek to suggest. The Countryside Alliance is a democratic organisation with almost 500,000 members. Not only do they hunt, shoot and fish, but they also own more dogs and horses than any other group in the UK. They also include large numbers of livestock farmers, and many are responsible for the management of most of Britain's wildlife, which task they perform with unrivalled skill and dedication.

As many of your Lordships will be aware, the Countryside Alliance was responsible for contributing one of the options to the hunting Bill that we shall be debating next week. What some of your Lordships will not be aware of is that the option which we produced was not our preferred course of action. We made our position clear to the Home Secretary and he was generous enough to make that point in his speech at Second Reading of the Hunting Bill, in another place. Mr Straw said:

    "I should make one thing clear immediately. The Countryside Alliance does not accept that those who undertake properly organised hunting are committing an act of cruelty that would he liable to prosecution under the two Acts to which I have referred [the Protection of Animals Act 1911; Wild Mammals (Protection) Act 1996] ... The second point that I should make, in fairness to the Countryside Alliance, is that while the alliance has been most helpful in presenting that option, it is quick to emphasise that it does not reflect the entirety of its position. The alliance does not believe it is right to deal with hunting in isolation. It would prefer a complete overhaul of our animal welfare legislation, making it unlawful to inflict, by any means, unnecessary suffering on any mammal".--[Official Report, Commons, 20/12/00; col. 384.]

That is my position today. I believe that there is a substantial gap in our welfare law in respect particularly of wild mammals. I believe that no one should be able intentionally to inflict unnecessary suffering on a wild mammal, and I do not believe that the courts would conclude that properly conducted field sports, including hunting, involve the intentional infliction of unnecessary suffering. The noble Lord, Lord Donoughue, made the same point and I greatly look forward to hearing the views of the noble Lord, Lord Burns, on that issue.

I believe that for two reasons, apart from my own experience. First, case law in the English courts has developed the concept that cruelty should be defined in terms of unnecessary suffering. Previous laws have always recognised that traditional rural activities and management practises do not involve unnecessary suffering and have made that clear by including them among the exceptions. However, because they do not involve unnecessary suffering these exceptions may well now be obsolete. Certainly this view was supported by the 1951 Scott Henderson report. I believe that the same conclusion is clear in the report of the Burns inquiry.

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It is particularly interesting to note that this issue was discussed at length during one of the oral evidence sessions that the noble Lord, Lord Burns, chaired as part of his inquiry on 15th May 2000. I would not want to detain your Lordships by quoting long passages of the transcript of that session, although I have them here. The view expressed during that seminar by Rachel Newman, the head of the RSPCA's legal prosecutions department, seems to reveal that the RSPCA does not believe that it could prove in court that hunting per se involves the intentional infliction of unnecessary suffering.

The seminar also touched on the exemptions that hunting has from certain provisions within the Protection of Badgers Act, but reading the transcript leads me to the conclusion that none of the participants understood the original reasoning behind that exception. It may, therefore, be helpful to your Lordships to look at it for just a moment.

The purpose of the original Bill relating to badger setts was to increase the protection not only of the animal but also its sett. Hunts were not exempted from the new crime of interfering with a sett on welfare grounds but purely as a practical matter. If setts are not stopped during hunting foxes will use them, and consequently hounds will be more likely to disturb them.

In terms of extending protection and the purpose of the exemption the legislation is successful. But the important point is that in providing that level of protection it became virtually impossible to cull badgers in order to regulate their numbers. Consequently, there is now a strong body of opinion that there are too many badgers, and there is evidence that that leads to disease within the badger population. I know that that causes concern within MAFF, as the noble Lord, Lord Donoughue, said; and it certainly causes concern within the farming community. This is a classic example of the law of unintended consequences. That is more likely to occur when legislation is too complex, unclear in its purpose or too widely drawn.

There is no doubt that the Bill before us today simplifies an area of the law that is currently over-complicated and impractical to operate, and as such it is a welcome improvement. However, I should like to see the whole subject taken further. Clearly, although today's debate is immensely useful, there is virtually no chance of the Bill making much progress. I hope, however, that the Government do not reject it out of hand and take the opportunity to move the whole issue forward in the next Parliament.

The whole relationship between man and animals has changed and we need to take account of that. At the outset of my remarks I said that I welcomed this measure, but I must sound a note of caution. This is a difficult area which we should enter with care. In this short debate we have not had time to look at all the difficult areas into which we need to go. But there are two areas that I believe we should explore further. First, I believe that there is a case for giving some

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guidance to the courts to assist them in differentiating between what is necessary and what is not in terms of the activity, be it pest control, sport or killing for food. The word "necessary" that is currently in the Act refers to the method of killing, not the motive. I believe that that is where courts may need assistance, although I have an open mind as to whether that guidance should be on the face of the Bill.

Secondly, I am concerned that legitimate activities may face malicious prosecution by private individuals and organisations which are completely undesirable. There is evidence that that was what happened following the passage of the 1994 legislation, and we need to ensure that that is not repeated. But I believe that there are solutions to these problems. At the same time, if we consider welfare we must also examine the wider issues of wildlife management. The Burns inquiry looks at these issues and identifies the problems. There is a conflict between animal welfare--the needs of an individual animal--and the wellbeing of populations and species. What suits the individual animal may not suit the population of animals, and vice versa. When we look at this in future we need to take that into account as one of a whole series of issues relating to man's relationship with animals. Huntingdon Life Sciences, the hunting debate, wild animal welfare and wildlife management are all issues in need of resolution.

The current foot and mouth outbreak following BSE and swine fever has again raised the issue of livestock farming and how we look after farm animals. These issues will not go away. I share with the noble Lord, Lord Donoughue, the hope that the Minister will not use Pandora's Box as a reason for walking away from this. The box is wide open, and it is up to government to give a lead in dealing with these very complex and difficult issues. If we do not deal with them in that way we shall be pressured into it by extremists in future. That is not a route down which we should like to go.

The Countryside Alliance believes that one way forward is for the Government to take the same approach to these problems that they take in relation to hunting. I believe that an independent inquiry by way of a Royal Commission to inform the discussion rather than resolve the issues would be acceptable to all sides and take the heat out of the debate. I believe that that would command widespread support.

I should like to thank the noble Lord, Lord Donoughue, for bringing this matter to our attention. This is a very valuable opportunity. I hope that we can return to the debate early in the next Parliament. I assure the noble Lord and the House of the support of the Countryside Alliance, although I cannot promise that that support will be unqualified.

11.35 a.m.

Lord Burns: My Lords, I support the Bill. I am very grateful to the noble Lord, Lord Donoughue, for giving us the opportunity to debate this issue. In taking that view, however, I should like to make two points by way of introduction. First, I shall limit my remarks

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to the relevance of this Bill to hunting with dogs, because I am afraid that I have even fewer qualifications to speak about anything else. Secondly, from my perspective my remarks are of relevance only if Parliament decides against a ban on hunting with dogs. If there is a ban, clearly they have rather less relevance.

I appreciate the scope for misunderstanding, but I also stress that my support for the Bill is not an attempt to predict the outcome of the debate; nor does it indicate a preference for Parliament to decide against a ban on hunting. I shall make that clear when we debate the hunting Bill on Monday. I took on the job of chairing the Committee of Inquiry into Hunting with Dogs on the basis that the committee did not have to come to a view on whether hunting should be banned. We were asked only to inform the debate on various aspects of hunting. Our report stuck to that remit, and I hope to do likewise today.

I believe, however, that even without coming to a view on that issue it is possible to support both elements of this Bill: first, the proposal to widen and generalise the definition of the offence; and, secondly, to remove some of the exemptions, including those for hunting. My reason for speaking today is that both issues were dealt with in chapter 9 of the report of the hunting inquiry, as the noble Lord, Lord Donoughue, explained. The context of that discussion was consideration of some practical aspects of hunting and coursing where the committee had a number of concerns. We set out suggestions as to how some of those concerns might be dealt with if a ban on hunting was not introduced, and my remarks today should be seen in the same light.

It is important also to stress that today's Bill is not a substitute for a ban in the sense that it would achieve the same result. I doubt that it would achieve the same result as a ban, and that was one of the issues to emerge from the seminar which we held during the course of the inquiry. Instead, I see this Bill as a step towards helping to resolve some of the concerns about aspects of hunting if Parliament decides, for one reason or another, not to introduce a ban.

As the noble Lord, Lord Donoughue, explained, the hunting inquiry report looked at this question and noted that one possible legislative approach would be to remove the present exemption of hunting from the Wild Mammals (Protection) Act 1996. The noble Lord, Lord Donoughue, quoted part of the report. Basically, the argument was that it would give an important signal that hunting should be subject to the same standards as apply to other organisations and individuals, and it would give a greater opportunity to test in the courts views about cruelty.

The main point here is that some hunting practices are claimed by opponents of hunting to be cruel. I believe that there were a number of concerns raised about some aspects of hunting across the range of people who gave evidence to us. At the same time, supporters of hunting claimed that what they did was necessary and that it involved no more suffering than other ways of managing the population of the animals

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in question. As we shall see on Monday when we debate the Hunting Bill, much of the debate centres on the welfare of the hunted species; indeed, it is probably the most complicated aspect of that debate, and not one that I want to go into today. But if the present debate does not lead to a ban on hunting, it is important that the courts should have a greater say in the types of practices that do not meet the test for "unnecessary suffering".

As the noble Lord, Lord Donoughue, explained this morning, at the moment the Wild Mammals (Protection) Act contains exemptions for,

    "lawful shooting, hunting, coursing or pest control activity".

I listened carefully to what was said by the noble Lords, Lord Donoughue and Lord Mancroft, about why there were pressures to include those exemptions in 1996 so that the Bill did not become a method to abolish hunting by the back door. However, if the supporters of hunting are right about the welfare implications of hunting, those exemptions are unnecessary. I continue to take the view that to subject hunting to the same standards as apply to other organisations and individuals would be an important signal. It would demonstrate that hunting does not enjoy special favours and that it should be called upon to justify itself, as any other group of people. For that reason, I am in favour of removing the exemptions.

The second issue is the nature of the offence. The noble Lord, Lord Donoughue, explained that in the report on hunting we note that removing the exemptions might have only a limited effect, since the principal offence in the Act relates to certain activities only and few of them appear to apply to hunting.

Therefore, the second welcome feature of the Bill is to drop that list of activities and to replace it with a general clause covering anyone who intentionally inflicts or causes or procures unnecessary suffering on or to any wild animal. That strengthens the Bill. It means that it will cover a wider range of matters relating to hunting and other activities. Both aspects of that are important--the removal of the exemptions and the widening of the offence.

The noble Lord, Lord Mancroft, mentioned that during the course of the inquiry into hunting we had a seminar which actually looked at this question. We debated the effect of removing the exemptions. The discussion is available on the CD-ROM at the back of the report. Although I recognise that not everyone will be able to find their way to the issue immediately, help is available if anyone really wants to look at it. There one finds that lawyers acting for the anti-hunting organisations argue that, even if the exemptions were removed, cruelty would have to be proved in each and every case. Therefore, it would be unworkable. They expressed concern that it was very unlikely that sufficient precedent would be set up to outlaw hunting activities as a result of this change.

However, having since contemplated and considered the issue, it is possible to see, as the noble Lord, Lord Donoughue pointed out, that a combination of a licensing authority, as set out in one

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of the options to the Bill, and the changes that we are debating today could substantially reduce some of these concerns.

Removing the exemptions in the Wild Mammals (Protection) Act and redefining the offence gives the option to test in the courts some of the practices involved. If successful prosecutions are brought against certain practices, surely the licensing authority would have to take that into account in granting new licences, even if it did not establish a firm legal precedent.

I come to the conclusion that the Bill would strengthen the hand of any licensing authority as it provides the opportunity for the law to play a bigger part in defining what does and what does not constitute unnecessary suffering to wild animals. It would enable successful prosecutions to be generalised beyond the case in question; and it would raise the issue of animal welfare and the role of the courts more clearly in the debate.

Once again I stress as strongly as I can that I am not advocating this combination as a better option than a ban. I wish to keep out of that debate. I do not want to argue that it would give the same effect as a ban, which some people might be encouraged to argue. My remarks are based entirely on the possibility, and not the prediction, that Parliament will decide not to introduce a ban on hunting. This gives us the opportunity to focus on how to take the issue forward; how to raise the question of some of the activities and practices, about which no doubt there is quite a lot of concern; how it will be possible to meet those concerns; and how to take the matter forward with the help of the courts. For those reasons I wish to support the Bill.

11.44 a.m.

Lord Tomlinson: My Lords, right at the outset I should like to join with my noble friend Lord Donoughue in his condemnation of the militant tendency that surrounds some of the activities which have been peripheral to the argument. The examples that my noble friend gave are condemned by everyone, whether it is people being attacked by baseball bats or some of the more reprehensible activities that we have seen in the context of Huntingdon Life Sciences. I join with him absolutely, as strongly as I did in the 1970s when we were combating a militant tendency in our own party.

The facility with which the Bill has been claimed to have a potential linkage with the so-called "middle way" is perhaps dangerous. That was partly shown up in the speech of the noble Lord, Lord Burns, who referred to the facility that this would give to the licensing authority were the Bill to be enacted. But the noble Lord went on to say quite clearly that that was not to argue in favour of the licensing road; we had to make the fundamental decision first. That is where I differ from my noble friend Lord Donoughue.

I have no doubt that my noble friend has produced his Bill with the best of intentions, particularly concerning the welfare of animals. His record on that

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matter is quite exemplary. However, the argument is beginning to become a diversion, because the Bill never can be, nor should be, seen in isolation from the debate which is to take place in your Lordships' House next Monday. It cannot be an alternative to the choices that must be made. It cannot be a substitute for them. The one matter that it points out very clearly is the rather false nature of the choices between three options that we shall have to make in your Lordships' House.

It would have been far better if we were faced with making a choice of principle between abolition of the process of hunting with dogs or a continuation of it, and, first and foremost, have that choice clearly made. If the choice were for a continuation of the practice of hunting with dogs, then the combination of licensing and the contribution of my noble friend's Bill would be entirely pertinent. But I believe that his well-intentioned measure at this time and in this way and in this juxtaposition to the debate that takes place next Monday, is flawed.

I agree entirely with the noble Lord, Lord Burns, that this measure would not achieve the same result as a ban. That makes this a premature decision to be making. The first and foremost decision should be whether or not this House supports the view of another place on the merits of a ban, rather than the fundamental--some would argue moral--question, "Should the hunting of wild mammals with dogs for sport be banned?" The effect of the Bill, if passed, would be to allow instances of hunting to be brought before a magistrate if there was evidence--that evidence would necessarily be post-mortem evidence--of unnecessary suffering. The report of the noble Lord, Lord Burns, referred to the difficulty of getting such post-mortem evidence.

It could take years for case law properly to emerge. It would remain inconclusive on the matter of principles. It would nullify what I believe is a central conclusion of the report of the noble Lord, Lord Burns--I join with other noble Lords in expressing thanks and gratitude to him for all the work that went into it--that hunting with dogs would seriously compromise the welfare of hunted animals.

The noble Lord's report produced evidence beyond all reasonable doubt that hunting with dogs includes the element of suffering. It is my belief that that suffering is unnecessary. In those circumstances, to have to prove each and every individual case of unnecessary suffering before a magistrates' court makes as little sense as having to wait for a drunken driver to commit an offence before you take him to court, rather than to say that the offence is being in the position to cause damage to someone else.

The effect of the Bill of the noble Lord, Lord Donoughue, would be to turn every allegation of cruelty taken to a magistrates' court into a repeat at that court of the process of gathering evidence which the noble Lord, Lord Burns, and his inquiry have already done for us.

The Bill has a simple approach. Its simplicity appears attractive, but I believe that it does not produce a positive answer to an equally simple

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question. Will its passage lay a divisive debate to rest? I fear not. In my view, it will not prevent cruelty; it provides a very limited redress to allegations of cruelty; and that redress would be significant for its capacity to engender protracted legal argument, indecision, confusion and, as between one magistrates' court and another, inconsistency. If the Bill is passed, the only certainty is that hunting with dogs would continue with almost no visible difference. If hunting with dogs is inherently cruel--on the balance of evidence, I believe it to be so--there should not be any requirement to prove each individual case of unnecessary suffering.

I am grateful to my noble friend Lord Donoughue for his efforts to find a mutually acceptable solution. However, in an argument such as this, my noble friend is trying to bridge an almost unbridgeable gap. There are views that can never co-exist. The fundamental decision on allowing hunting to continue legally or abolishing it must be taken first. It is that fundamental conflict which should be resolved and I fear that the Bill, if carried, would divert us from that task.

11.52 a.m.

Baroness Mallalieu: My Lords, I should, first, declare my personal interests. I am president of the Countryside Alliance, I am chairman of the Labour Leave Country Sports Alone campaign and I am a member of the RSPCA. I am also fortunate enough to live in close contact with animals of many different types: farm animals--sheep and cattle; pet animals--horses, cats, dogs and even guinea-pigs; and wild animals, which live on our small farm in the Chilterns--roe deer, muntjac, foxes, badgers, rabbits, hedgehogs and a range of small mammals, some of which are more desirable to have as close neighbours than others.

The relationship between man and animals is full of contradictions and the laws which govern those relationships are at present both complex and, in some respects, plainly inadequate. I congratulate the noble Lord, Lord Donoughue, on introducing the Bill. Whatever is said by others, it is both timely, in the light of the debate we shall be having at great length on Monday, and it also provides a much needed opportunity for a short public debate on the duties and obligations we owe to animals and the limits which the law should impose on what we do with them.

I support the Bill. It is limited in its scope because it applies only to wild mammals. I do not believe that the law should afford protection to anyone who deliberately causes unnecessary suffering to any wild mammal or, for that matter, to any animal. We have in recent years, as other noble Lords have said, seen the rise of the animal rights movement and with it a dangerous, intolerant extremism, which is now manifesting itself in acts of intimidation, violence and terrorism. I do not subscribe to the concept of animal rights. If animals have rights, it is surely wrong for us to eat them and it is wrong for us to keep them as pets; and I do both. But I strongly support the concept of trying to do our best to improve animal welfare and to show respect for animals in all our dealings with them.

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There are many aspects of our present treatment of animals--it is right to say that the animal rights movement has highlighted them--that need proper examination and need to be changed. Many pet animals in this country, both large and small, are kept in wholly unsuitable conditions that cause unnecessary suffering. Many farm animals are treated in ways that require to be changed, as the current crisis is showing us. There is an urgent need for public concerns about experiments on animals to be examined and allayed if we are not to jeopardise progress in research developments which could benefit both people and animals alike. There is a need for proper examination of the way in which man can live together with the wild animals in our increasingly urban and suburban country and how their populations can best be managed and balanced against competing interests.

Unfortunately, the national debate is not addressing those issues and we are becoming a nation of sentimentalists. It may make the nation feel better to see television programmes night after night in which deer have plaster casts fitted to their legs before they are returned to the wild. But it does not begin to address the real and growing problem that the national deer herd has exploded to a level which in some places means that there is serious damage to crops and trees and a major road accident problem. A steady diet of unrestrained sentimentality on television, where every wild animal is given a name and attributed with quasi-human emotions, means that we are failing to face up to the realities and the hard decisions which we are going to have to make.

Wild animals have, for a variety of reasons, to be killed. Those reasons include the protection of crops and of livestock and the protection of human health or animal health; and they may need to be killed because they are sick, diseased or injured, or are simply too numerous for their habitats to accommodate them. A lack of contact with wild animals, other than through these television programmes, means that too many people fail to make a distinction--it is an important one--between wild animals and domestic animals such as pets. They have different needs.

Wild animals and domestic or pet animals are very different. The latter usually cannot manage without our assistance. What is acceptable in the treatment of a pet may be positively harmful to a wild animal, and vice versa. A pet may be put in a cage or a kennel. A fox is deeply distressed by the experience, as are most wild animals when trapped, even when the trap inflicts no physical pain. Nor can many people in today's climate, divorced, as most of us are, from the production of our food, understand that a farmer who rears animals for food and sends them off to the abattoir may still care greatly for them.

How these problems should be handled, and how all these aspects of our relationship with animals should be managed, should not be determined or led by people wearing the Balaclava helmet and wielding the baseball bat, to which my noble friend referred. Nor should they be determined or dictated by animal rights lobbying groups with bottomless bank accounts. What is needed is a measured and responsible lead from

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government; not a defensive or a piecemeal response to this campaign or that campaign, to this pressure group or that extremist demonstration. An inquiry is needed in the very near future into all aspects of our relations with domestic animals, farm animals, animals used for experiments and wild animals, and there should then follow, as part of that inquiry, a proper comprehensive review of the law--not just piecemeal reform of the law--in relation to them. That is why I say that this is an excellent Bill, but it is limited and modest in its scope.

As other noble Lords have pointed out, the proposal for the reform of the Wild Mammals (Protection) Act 1996 was raised initially by the Countryside Alliance in its evidence to the inquiry chaired by the noble Lord, Lord Burns, back in April last year. Other speakers have referred in detail to what took place. I think that it was unfortunate that those who represented Deadline 2000, which campaigned for a ban, did not welcome that proposed change.

I am also disturbed by some of the arguments proposed so eloquently to the House by my noble friend Lord Tomlinson. He believes that hunting is cruel. I believe that it is not. The inquiry of the noble Lord, Lord Burns, made no finding that hunting was cruel. I hope that that will be spelt out in language that we can all understand during the course of the debate on Monday. There is a dispute between my noble friend and myself. We disagree on this matter. Surely it is right that a disagreement of this kind should be tested by the courts. Surely it is not right that Parliament should adopt the view that perhaps it is difficult to provide the evidence and therefore we should simply legislate to outlaw the whole of the activity without ever trying to see whether an individual charged with an offence has or has not committed the offence.

If hunting is cruel, as the noble Lord believes, then it must be right that the courts should be required to produce evidence of that cruelty before a conviction is passed for a crime. If, during the course of hunting, anyone breaks the rules and intentionally causes unnecessary suffering in the way that this Bill provides, then not for one second would I argue that the criminal law should apply. As an essential principle it must be right that no one, under any circumstances--hunting, pest control or any other activity--is entitled deliberately to cause unnecessary suffering to a wild mammal.

As it stands, this Bill may need some amendments to provide further clarification. Other noble Lords have pointed this out. But that basic principle is surely sound. In reality, there is no nice way of killing a wild mammal. It is not easy to do in a manner that alleviates suffering. Those who bear the direct responsibility for controlling wild mammals must still be able to do so within the law, provided that they adhere to that principle; namely, that unnecessary suffering must not be caused deliberately.

The present law is illogical. As the noble Lord, Lord Donoughue, said when introducing the Bill, it cannot be right that someone who kicks a fox to death is a

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criminal, but someone who deliberately shoots it, intending only to wound, is not. I warmly welcome this modest and sensible measure.

12.3 p.m.

Lord Hardy of Wath: My Lords, I should like to join my noble friend Lady Mallalieu in commending the Bill and congratulating my noble friend Lord Donoughue. I believe that the speech we have just heard, along with the speeches before it, need to be considered carefully.

Perhaps I may declare a non-interest. I do not practise or support field sports. What I am concerned with is animal conservation and animal welfare. I have been involved in those matters for a long time. On this occasion I shall not refer in detail to my views on the Hunting Bill because I wish to speak in the debate on Monday. However, I will say this: the test should be whether the Hunting Bill will reduce or add to cruelty. In my view, the Bill before your Lordships' House today would reduce cruelty, but the Hunting Bill will increase it. No doubt the reasons for that will be spelt out on many occasions during the long hours of the Second Reading of the Hunting Bill, but the fact remains that, if I were a fox, I would vote against the Hunting Bill. I would rather die quickly by the hounds than in up to a fortnight in agony as a result of septicaemia. I shall not say any more on that subject.

However, I am concerned about the need to improve, clarify and strengthen the existing law in regard to cruelty to animals. Around a year ago, I was fortunate enough to hold a debate on this matter and I remain convinced of the need for stronger legislation. Perhaps I may take the House back to 1973 when I steered the Badgers Act through Parliament. I did so because at the time I was studying badgers. Indeed, shortly afterwards I wrote a book about them. I found out that, in South Yorkshire, badger setts were being assailed during the breeding season when the cubs were below ground. They were being attacked by people who were trapping the badgers and taking them for the purposes of baiting. Those people were pretty ruthless. They even put gin traps at the side of badger setts close to a nature trail being used by the children of local schools. The House passed the Badgers Bill.

Far fewer prosecutions were brought under the Act than there ought to have been because the law allowed that fairly unreasonable defences could be accepted. People who knew very well what they were doing got off because they would say, "We didn't know it was a badger. We thought it was a fox". It was all right for them to be cruel to a fox, but it would have been wrong to be cruel to a badger.

During the late 1970s and early 1980s, along with other Members of both Houses, I took part in several visits to Forestry Commission land. I spoke to the people responsible for the management of deer in those areas. In one case, the chap in charge of culling the deer told me that every single deer culled that year in his territory had been injured or wounded, usually quite deliberately. An air gun pellet had blinded one deer; a bolt from a crossbow was embedded in the side

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of another. After consultation, I presented the Deer Bill to the House. It did not attempt to stop the culling of deer because, as my noble friend pointed out, the deer population rises and there are no natural predators--unless we take into account motor vehicles, although one could not class them as "natural".

The Deer Bill received all-party support. Then a colleague of mine, who meant well because he was a decent man with good motives, said, "I shall block your Bill". I asked him why, to which he responded, "Because it allows deer to be killed. Deer are beautiful animals which should not be killed at all". I pointed out the arguments and how the Bill provided for a close season for roe deer which, at the time, did not have a close season. That permitted brutality to carry on throughout the year. But the Bill was blocked.

Three or four years later, another measure was passed, which was somewhat ameliorated. Certainly it was better than nothing because it did apply a close season to roe deer, which they sorely needed, but there was a refusal to accept the notion that any control needed to be applied to the deer population. Some controls are needed, but they must be exercised with humanity and competence.

I am experiencing some considerable irritation at the present time because I am deeply fond of swans. My noble friend remarked that wild animals should not be given names. Although I accept the general argument, I should say that, if I step out of my back door and shout, "Charlie!", a cob comes along for some corn. Over the past few months in South Yorkshire, several swans have been shot with air guns, for no good reason at all.

People still go out and shoot what they consider to be rats, but which are in reality water rats, of which there are few in Britain today, largely because of the mink. Mink entered the wild in Britain as a result of the lunatic activities of some of the animal liberation activists that a number of us heard Mr Cass of Huntingdon Life Sciences talk about in this building on Tuesday of this week. They have no regard for the fact that, if they were to succeed in their aim, the research would be moved out of Britain and taken to countries where there is no animal protection legislation, no inspection and no proper safeguards to guarantee some sort of decency in the treatment of those animals. These people are as unwise and irresponsible as my honourable friend who blocked the Deer Bill and ensured that many deer suffered for a long time before we finally got the measure through.

The test has to be one of good sense and wisdom, but with an understanding that what we do should add to the protection of nature and to the fulfilment of our humane responsibilities. I do not believe that the Hunting Bill does that; I believe that this Bill could. I hope that we will see this measure--with perhaps some of the amendments to which my noble friend referred embodied in it--reach the statute book. It is the kind of approach that we desperately need in this country. Frivolous and irrelevant measures which dominate debate do not take us far forward; this Bill could certainly remedy that situation.

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12.11 p.m.

The Duke of Montrose: My Lords, perhaps I may declare an interest. My title perhaps gives sufficient explanation as to where my interest lies; my family are still landowners after hundreds of years. I should also add that I shall not be speaking on Monday. Having seen the list of speakers, I feel that I should not burden your Lordships with anything that I may have to say because it will have been said already by a great many other noble Lords. However, many of the arguments brought forward today will overlap with those which will come forward on Monday.

Whether we see it as a fortunate or unfortunate attribute, human beings have evolved throughout a major part of our time on earth in order to hunt or to avoid being hunted. We have bifocal vision, we have carnivore-type teeth, and we have never developed the multiple stomachs that would enable us to live off grass and to chew the cud. The one area in which this side of our nature is now considered totally acceptable is in what my rather chauvinistic part of the country calls "wenching", where our judgment of movement, form, speed, distance and opportunity are brought into play, along with various other biological urges. The rules are mostly unwritten, but time-honoured.

In the hunting of game, many of the same areas of judgment are used, although the biological urge is different and encompasses many aspects. It encompasses the pleasures of exercise and exploration and the sense that we are participating in an activity that has its origins in the skills which have ensured the survival of our species, down to the pleasure that one can see in the face of a young boy who brings home a fish for his mother to cook.

Your Lordships are, no doubt, fully aware that to say that we are going to make many aspects of this activity illegal is not going to put an end to it. It merely means that those who take part in it will not have as a main motivation that they should minimise the suffering of the quarry species; their overriding motivation will be to see that they do not get caught. That element exists at the moment and, depending on one's background, is known as "claimants of ancient people's rights" or as "poachers".

I have had similar experiences to those outlined by the noble Lord, Lord Hardy of Wath. I have frequently come across roe deer that have been left to die in the woods; geese and wildfowl that have been peppered with shot when they were so high that they were out of proper killing range; and red deer limping around because of their wounds. We even had a ewe running around with a crossbow bolt lodged through its head and sticking out the other side.

The countryside has a fairly active cadre of people who put a lot of time and effort into preventing the activity of poachers. These are people who presently exercise their legal and sporting rights. Perhaps the most effective in this regard are the groups of ordinary working men who form syndicates to police areas themselves. I should like to see any poacher trying to operate in that kind of situation. If we make these

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activities too difficult, these people will cease to act as guardians and we will be left looking for more official policing and so on to try to control matters.

To achieve mammal and other wildlife protection--which is a very proper and laudable aim--the system we produce must be capable of providing it. Unfortunately, merely passing a law is not the main line of defence that is needed; it is merely the underpinning. We have to be sure that we have thought through what it is underpinning and that it will be effective.

My main misgiving about the Bill proposed by the noble Lord, Lord Donoughue, is that it will leave the final determination of what constitutes unnecessary suffering to the courts. They will also be left to determine in each case whether the person accused of causing the suffering did so intentionally. I was interested to hear the noble Lord, Lord Donoughue, who I see coming back into the Chamber--

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