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Lord Livsey of Talgarth: I wish to propose Amendment No. 2, but will first comment briefly on Amendment No. 1. The expertise of the noble Baroness, Lady Mallalieu, became very evident in her speech and I have no wish to repeat what she said, but merely to add to her final statement. The Minister, Mr Alun Michael, when discussing the word intention, which is the nature

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of Amendment No. 1, said that the intention was to pursue a wild mammal. That was his description originally on 4th February. The definitions were spelled out by the Minister on that occasion during the Committee stage of the Hunting Bill. However, such definitions do not appear in the Bill as presently constituted. In other words, there are no definitions of intention in the Bill. That is a very serious matter indeed.

We should surely ask, "Why not?" when we question how this state of affairs has arisen. Surely the Bill should spell out the intention and the different functions that are taking place. It is not specific in relation to accountability, to which the noble Baroness referred. As the Bill stands, an offence would be committed if a drag hunt sets off on the drag line but the hounds start to follow the scent of a wild mammal—even if the mammal is not present in the area. Surely it should be exempt because the hounds are not intentionally hunting a wild mammal.

Without this amendment, the courts would have to develop a definition that relied upon degrees of risk and foresight in the context of the activity of hunting. Inevitably, such definitions in court would be subjective and not objective because the definitions are not spelled out in the legislation. These are serious matters because criminality would be defined by the court without such a definition coming forward.

Amendment No. 2 tries to define what occurs during a hunt. In line 4, it would leave out from the word "he" to the end of the line and insert,


    "expressly encourages a dog to hunt a wild mammal that can be shown to be present, unless his hunting is registered or exempt".

That means that an offence would be committed only if the dog or dogs were not registered to hunt or were not exempt and were being encouraged to hunt without those specific conditions.

I will address two major points: the nature of hunting and the processes that occur in hunting, which are very important. The amendment addresses the lack of definitions for what is undoubtedly a complex activity. For example, in exempt hunting specified in Schedule 1, there is reference to flushing a wild mammal out of cover. That is common parlance in shooting and is something that also occurs in hunting. There is no actual description of "cover". Is it woodland or just long grass? Sometimes a fox will run out into the open from an area of scrub and then back again and so on. When does a flush become a hunt? The lack of proper definitions in the Protection of Wild Mammals (Scotland) Act 2002 has contributed to the complete shambles north of the Border regarding hunting with dogs. The Scottish Parliament has not banned hunting. It has simply changed the way in which the practice is undertaken. Foxes are still chased, but are now shot as well and in greater numbers. One wonders where the animal welfare benefit lies in that ill thought-out legislation.

Definitions were included in the Anti-hunting Bill introduced in the House of Commons by Michael Foster MP in 1997, but were poorly drafted and found so difficult to improve that they were subsequently dropped. However, if good legislation—and I mean

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good legislation—is to reach the statute book, that law must be clear to everyone. It is the dog that hunts, not the human. Dogs will naturally hunt whether a human is present or not. If a dog owner or keeper knows that dogs have a propensity to hunt yet does not wish to do so, what happens if the dog is released from its lead? Clearly, such an action on the part of the owner is intentional. The amendment makes it clear that the prosecution would have to show that the owner "expressly encouraged" the dog to hunt.

The offence in Clause 1 is to hunt a wild mammal with a dog, but what if a wild mammal is not present? For example, one cannot be accused of stealing a car if that car does not exist. Of course, there will be the accusation of intent, but that raises further difficulties. Indeed, I mentioned the example of a drag hunt earlier. A hunt is made up of several sections. The first is when the dogs cast around for a scent. The second is when the dogs have found the scent and follow it. At this point the quarry species probably does not know that it is being hunted. The third part is when the quarry is viewed by the dogs and a sighted chase takes place. The final part is either the quarry escaping or being caught and killed. The question must be, if the intention of those hunting is not clear, at what point will an offence take place? Only when a quarry is sighted? If so, there will be lots of police officers spending a long time following hunts.

Sometimes, however, as the noble Baroness, Lady Mallalieu, said, the dogs will find a scent line but go the wrong way. When that happens the line is called the "heel" line, whereas the direction in which the animal is going is known as the "toe" line. So it is possible that those hunting with dogs are going in exactly the opposite direction.

I should like to make a number of other short points. In the Second Reading debate in your Lordships' House on 16th September 2003, the noble Lord, Lord Whitty, said:


    "Cruelty is justifiable only if the alternative is worse cruelty or there is no alternative in achieving the utilitarian objective".—[Official Report, 16/9/03; col. 892.]

Scientific evidence now exists to show that shooting, the main alternative to hunting, may in certain circumstances result in much higher wounding rates than previously claimed. There is no scientific study other than the flawed study of foxes taken to wildlife hospitals to counter that new evidence. It is the case, therefore, that a simple ban on hunting with dogs will actually make animal welfare worse. It is important to note that evidence.

Comparisons of hunting with dogs and the so-called baiting sports are totally wrong. I am sure that some of those issues will be raised later in the debate. Such comparisons are wrong for two reasons. First, the animal being baited is held captive by one means or another. Secondly, and perhaps more importantly, no alternatives to baiting were proposed. The hunting debate has been flawed from the very start in that it has concentrated solely on just one method of control while ignoring the other methods regardless of how much suffering they cause. The Bill sponsored by the noble Lord, Lord Donoughue, to amend the Wild

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Mammals (Protection) Act 1996 is the right way in which to approach the issue. That legislation will give all wild mammals protection from undue suffering in any activity.

I hope that I have clearly spelt out the importance of Amendment No. 2.

Lord Graham of Edmonton: I will certainly oppose Amendment No. 1, not least because it is the opening shot which we shall hear reverberate round this Chamber both today and in future debates. It attempts not to revise this legislation but to disembowel a Bill which has come to us from another place. Great play has been made of the function of this House, which I respect. Our function is to examine, to alter and to ask the other House to think again. However, devoid of the rhetoric behind the decision in the other place, the plain fact is that Clause 1 states:


    "A person commits an offence if he hunts a wild mammal with a dog, unless his hunting is exempt".

I have waited all my life to see legislation with those words in it. I understand the feeling of Members on all sides of the Committee who do not wish to accept that provision, but it has come to us from the other place.

When I look through the range of amendments, which have been put together strategically and cohesively, it is clear that Amendment No. 1 is intended to lead the onslaught on the integrity of legislation sent to us from the Commons. I realise that that may be to the liking of a great many noble Lords. Because of the arithmetic, I cannot believe that the proposed amendments will not succeed in this Chamber. However, if we send the Bill back to the other place with the proposed amendments, we know the situation in which we will be placed. This argument is not about the issues; it is an argument between the Houses.

I shall not speak very often or for very long in these debates. Those who are perturbed about the time taken up on the Bill may be assured that I will be their ally on this amendment and on others. As a former Member of the Commons, however, it sticks in my craw that the decisions of the other place are being treated so casually by those who want hunting to continue. The issue has not changed. Are you in favour of training one animal, a dog, to hunt another animal, not for food, but for pleasure or leisure or sport or whatever you like to call it? I am against it. Amendment No. 1 is the beginning of the wedge. I oppose this amendment and perhaps every other one that hangs with it.

Lord Crickhowell: I had thought that this was the one amendment on which those in favour of a ban on hunting could join in support with those against a ban on hunting. If the noble Lord who has just spoken had made that speech on the next set of amendments I could have understood what he was about. Here, however, we are simply dealing with the question of the definition of what constitutes hunting. I should have thought that anyone who drafts legislation would want to ensure that they do not have to rely simply on

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statements made by Ministers during a Committee stage for such a definition. I should like to give two very simple examples of the problems that are likely to arise.

I very regularly exercise my younger daughter's dog, a charming, delightful whippet. Confronted with sheep, it behaves impeccably. Confronted with any farm animal, it does not consider chasing it. Unfortunately, however, it is not a lawyer. As the noble Lord, Lord Livsey, pointed out, it is dogs that hunt, not humans. The fact is that Sterling—for that is the dog's name—behaving impeccably when it meets a sheep on the Black Mountains, but shortly afterwards sensing that there may be a squirrel, possibly a rabbit or better still a hare in the bracken, becomes almost uncontrollable.

I know that Sterling is inclined to chase those animals. He usually makes a bit of a fool of himself, but off he goes. I suppose it could be argued, as the Bill is drafted, that if I do not keep him on a lead the whole time, I am hunting, because I know that he is likely to go off after the animal. The fact that I walk beside him saying, "Now, Sterling, don't you think about it; behave yourself", would not, I suspect, be a very convincing defence if I happened to be spotted chasing the animal which was in full pursuit of a hare, although it is very difficult in deep bracken to know what it is pursuing.

So I suspect that, without a definition, the ordinary dog owner out exercising their dog in the park—as the noble Baroness, Lady Mallalieu, suggested, although I am on wilder country—may find themselves committing a criminal offence. I do not think that that is a possibility that we should consider.

Let us consider the case of flushing out, which has been mentioned. Any of us who have been shooting knows that dogs are put into the wood to put up pheasants, as I understand it, or whatever other birds one is seeking to flush. However, as I understand it, if those dogs chasing through the wood, encouraged by the beaters, suddenly come across a rabbit, fox or any other mammal, as they very likely will, they are then committing a criminal offence. That seems absolute madness. There was no intention that they should be chasing the fox or the rabbits, and indeed the beaters will do their best to get them back to the job of flushing out as quickly as they may. However, unless we have this matter properly defined in the Bill we are going to have a huge doubt about the legal position.

I do not think that we should allow legislation to pass from this House with that kind of doubt hanging over it. I do not think that we should put ourselves in a position of perhaps creating criminals of people who had absolutely no intention of hunting but cannot mount an effective defence. Even the noble Lord who has just spoken may occasionally take a dog for a walk. It is possible that that dog will chase a mammal. I do not want to see him prosecuted either for committing the offence that he hates so much. I hope that we shall support both these admirable amendments.

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4 p.m.

Lord Phillips of Sudbury: I have the greatest respect for the noble Lord, Lord Graham of Edmonton, and can never hope to achieve the parliamentary distinction and service that he has rendered over a long political life. However, I must take issue with him when he twice referred—I think it is fair to say—to this Bill, rather than to these amendments, as an onslaught on the integrity of the Bill.

If there has been an onslaught on the integrity of the Bill, it occurred in the House of Commons when the original Bill succumbed to an onslaught of prejudice by Back-Benchers. I use the word "prejudice" advisedly. I suggest that the one single issue which might make those of us who are against abolition take the contrary view would be if there was solid evidence that hunting of foxes by hounds was a cruel pursuit. But the evidence—as collected by the noble Lord, Lord Burns, as produced before the hearings at Portcullis House, as submitted by a variety of vets and other people who know what they are talking about, which the noble Baroness, Lady Mallalieu, referred to succinctly—is plain to the contrary. The only method known to mankind of hunting a fox so as to leave it at the end of the hunt 100 per cent alive or 100 per cent dead is hunting by hounds.

Every alternative suffers from a double defect; that is, first, the competence of the shooter or the layer of a trap or poison. Secondly, where there is not an outright death by shooting, trapping or poisoning, there is the prospect of long, agonising suffering. Therefore, I put it to the noble Lord, Lord Graham, that he should not continue with a line that, I believe, in all objective truth, has been exploded. In exploding the case of cruelty, the case for abolition has been exploded. I strongly support the amendments that we are now discussing and I strongly support the amendments that follow, which seek to return the Bill to the kind of state in which it was introduced to the House of Commons.


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