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The noble Lord said: I speak to both Amendments No. 19 and No. 21, which are grouped together. The amendments omit the two subsections from Clause 3, which provide that a person commits an offence if he knowingly permits land that belongs to him to be entered or used in the course of the commission of an offence under Clause 1 or if he knowingly permits a dog that belongs to him to be used in the course of the commission of an offence under Clause 1.
I did not speak in the earlier part of this debate, before supper, because I knew that I was to move these amendments and would have an opportunity to speak now. I do not take the generous view about this Bill that has been heard from some noble Lords during the past few hours. I think that this Bill is entirely based on prejudice. I think it has precious little to do with the fox, or whether it is killed in the most cruel or the least cruel way. It is based on the prejudice of believing that those who follow a hunt are simply doing so, as toffs in pink coats with top hats and looking pretty funny, in order to get pleasure out of killing for fun.
That is an absurd misconception, but it is a prejudiced belief that is held by a number of people who live in the cities and towns. It is clearly held by some 300 Labour MPs who were willing to overthrow the contents of a Bill that was put forward by their own Minister in order to vote for the total banning of hunting, as described in the Bill that we had before us before we amended it tonight. This is simply prejudice and in that opinion I am supported by the noble Lord, Lord Skidelsky, who also put his name to these amendments but who is not in his place at the moment. In an extremely good article in the Daily Telegraph on Wednesday, 8th October 2003, which I would recommend your Lordships to read, he states:
Where do we go from here? Foxes are vermin. They are not an endangered species. They have to be killed and killing by hounds is the quickest, most efficient and most certain way of doing that. To quote those famous words by the noble Lord, Lord Burns, it is impossible to be certain which method of killing,
I am very grateful to see the noble Lord, Lord Stoddart, in his seat because he asked a number of questions during the opening debate this afternoon. He asked how one decides, when a person releases a dog, whether it is for the purpose of huntingwhether the person is committing a criminal offence. The noble Lord did not get a proper answer from the Minister. The noble Baroness, Lady Mallalieu, made rather the same point about releasing a dog in a park knowing that foxes are in the vicinity. Is that an offence? We started off with the dog owned by the daughter of the noble Lord, Lord Crickhowell, which went into the broom looking for a mammal, then we moved on to other dogs all possibly causing their owner to commit offences that were not intended.
Will the Minister tell us the purpose of Clause 3? The common law rules on secondary liability are widely known. They are very well established common law rules and it is draconian to go beyond them. I am not a lawyer, but I remind the Minister of the common law rules on secondary liability. The definition in chapter 18 of Archbold: Criminal Pleading, Evidence and Practice, states that,
With that common law definition, why is Clause 3 in the Bill at all? Either it does not spread the net wider than the usual principles, in which case there is no point to it, or it does spread the net wider, in which case why? What is the purpose of creating the crime in Clause 3? What is it about hunting that justifies a wider net being spread, especially as the supporters of Clause 3 have apparently decided that the offence is not serious enough to justify imprisonment? I know that my noble friend Lady Byford will speak later about the question of knowing about an offence, but, on the broad issue, it is extremely important to resolve the lack of definitions and clarity and the question of why Clause 3 is included in the Bill. All criminal offences ought to be clearly defined. That leads on to the other practical point.
For the purposes of the Bill, land is regarded as belonging to a person if he "occupies it". Again, however, although someone is a tenant and might personally object to the land being used for hunting, would he be liable to prosecution if the landowner allowed that land to be used for hunting?
What about a family who take a holiday cottage on a short-term let? If they take no positive steps to prevent dog walkers strolling across the land and the dog slips the lead, perhaps like the dog of the noble Baroness, Lady Mallalieu, in order to pursue a cat that is "living wild", an offence would arguably be committed under Clause 3. The short-term tenants would have permitted other persons to use the land to hunt. It seems to me that this clause is inevitably going to lead to a very wide range of misconceptions, arguments and disputes about whether or not a crime has been committed. The possible misinterpretations are endless.
Finally, the provision is totally unenforceable. One could never believe that the police or magistrates would ever be able to go about the task of enforcing this clause. There are 133,600 square miles in total of registered hunting land in this country. Can anyone think that the police or anyone else will be able to ensure that Clause 3 as drafted is obeyed throughout all of those square miles? Clause 3 is a bad and unnecessary part of a bad Bill. I very much hope, therefore, that the Committee will consider omitting Clause 3(1) and (2). I beg to move.
Lord Peyton of Yeovil: I am very happy to support my noble friend; my name is on the amendment. He mentioned the question of enforceability, which reminded me of a question that I asked the Minister earlier this afternoon. Was he saying in the course of his Second Reading speech that unenforceability was a matter about which legislators did not need to have any concern? It seems to me the most extraordinary thing to have said. It was only a fragment, but it was a fragment in his speech which did not make any sense to me at all. I should be very grateful if the noble Lord
Lord Carlile of Berriew: Without these amendments this is surely the law for compulsory sneaking, is it not? If one looks at Clause 3 and considers the following set of circumstances, that must be the case. In my example, a landowner does not permit his land to be entered by the person who commits an offence against the legislation. He finds the person on his land. Under Clause 3(1), he will still be guilty of,
What is he supposed to do? If the purpose of the proposed legislation is to be given effect, he is virtually required to telephone the police to inform them that he thinks an offence is going to be committed on his landeven though he may be a person who is totally opposed to the legislation, has no desire to report people who may be his friends to the police, and knows perfectly well, because he has spoken to any number of chief constables, that they believe the law is unenforceable in any event. It is another example of how ill-thought out the Bill is.
As I see it, there is another legal problem, for which I should be grateful for an explanation from the Minister if I am wrong. What is the criminal state of mind? What is the mens rea required for an offence to be committed under this proposed section? From the way in which the legislation is drafted, it appears that the mens rea consists of knowingly permitting the land to be entered or knowingly permitting the land to be used. It is not clear whether it is the intention of the Government that in order to commit the offence guilty knowledge must apply to both limbs of the clause: that is, first, knowingly permitting the land to be entered or used, and, secondly, knowing that an offence against the legislation is to be committed.
If that is what is intended, why has the legislation not been drafted in a way which everyone understands? On the other hand, if the legislation is deliberately drafted in this way, leaving open the interpretation that an offence is committed simply if the land owner permits the land to be entered or usedeven if he does not know that there is to be a commission of an offence under the legislationit is simply an unfair law which no sensible Parliament should allow to be passed.
After all the time that the Government have had to consider the legislation, we are left with another bad example of a lack of clarity. It is with those points in mind that I propose to support all the amendments if given the opportunity.
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