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Lord Simon of Glaisdale: Before the noble Lord, Lord Kimball, rises to reply on the amendment, may I ask the Minister about the second amendment? Does not the Bill impose a duty on the dog owner? The noble Lord, Lord Campbell of Alloway, called it "absolute liability"; I call it "strict liability". They mean the same thingthat the dog owner is responsible whether or not he knows that the act has been committed and whether or not he can prevent it. I ask the Minister to answer that question with a yes or a no because I think that it can be so answered.
It is a defence if the person in charge of the dog removes the faeces into a receptacle, but there is no provision that any receptacle for that purpose shall be provided. I see that the Minister nods in acquiescence. That is how I read it. Moreover, it is no defence that there is no utensil available to the person in charge. Surely if it is a requirement to remove the faeces into a receptacle, we cannot really expect dog owners to go around carrying receptacles for that purpose. Does the dog owner also have to carry a shovel and a dust pan
Lord Campbell of Alloway: As this is Committee stage, perhaps I may say briefly that in view of what the noble and learned Lord has just said, I think that my noble friend the Minister ought to be in a position to give some constructive and satisfactory reply.
Lord Lucas: I do not quarrel with most of what the noble and learned Lord, Lord Simon of Glaisdale, said. Perhaps I may amplify it, however, by saying that an owner has a defence of reasonable excuse and that no offence is committed if he removes the faeces. All that I can offer the noble and learned Lord is my personal advice and suggest that he does what I do
Lord Lucas: That must be for the courts to decide. I can only offer the noble and learned Lord the advice to do what I do. I carry a plastic bag in my pocket and use that to pick up the dog faeces. All that he needs to do is to be careful that it is not one of the plastic bags which supermarkets provide for packing vegetables in because they have small holes in the bottom.
Lord Mancroft: Before the noble Lord sits down, I had not meant to intervene but I cannot now resist it having heard the debate. For clarification, is the noble Lord really suggesting that a gutter or ditch is no longer the right place for a dog to empty because it has been the right place for many hundreds of years past? If it is suddenly not to be the right place, where else in London or other cities when one is not close to a park, and where it cannot be done anyway, would the dog do it?
Baroness Hamwee: We seem to be straying back to the fundamentals of the Bill rather than the amendments. While I understand that many Members of the Committee may view these things differently, as the Minister said, life moves on. There are different views as to what is now appropriate and hygienic. There are many parents of young children, as well as older people, who find it offensive to have to cope as pedestrians with dog fouling in the streets.
I am an urban person. I cannot talk about the countryside, but it is a major problem in our cities not just in the streets but in playgrounds. There are serious diseases related to dog fouling. I applaud the Minister for having taken such a firm and blunt stand with those
The Earl of Northesk: Like my noble friend the Minister, I shall attempt to confine my remarks to Amendments Nos. 1 and 2. As I explained on Second Reading, one of the primary purposes of the Bill is to rationalise and simplify the existing procedure for making by-laws with respect to dog fouling. In that context, an overarching principle which has guided its drafting has been a conscious attempt to carry forward the model by-laws, for all intents and purposes unchanged, onto the face of the Bill.
Thus, there is little enough in the Bill that cannot already be achieved by a local authority under the by-law-making procedure. That is an important point for the Committee to understand. Furthermore, the Bill's provisions will be exercised locally under the direction of any regulations made by the Secretary of State, which I hope will go some way towards resolving the difficulties expressed by the noble and learned Lord, Lord Simon.
With that in mind, the first point I should like to make with respect to Amendment No. 1 is that local authorities can already create no-fouling areas in gutters. Accordingly, far from rationalising the existing procedure, which is the Bill's desired effect, the amendments would considerably diminish the Bill's effectiveness. There is a consensus, certainly in urban areas, that dog-fouling is a serious problem that requires a more efficient and enforceable means of redress. Therefore I find myself unable to sympathise with my noble friend's amendment which, notwithstanding its good intentions, would clearly serve to undermine the procedure already in place.
As my noble friend has explained, the intent of Amendment No. 1 is to prevent local authorities being able to designate gutters and ditches as areas where the offence of dog fouling would apply while maintaining their ability to designate the carriageway, the highway, the verges and any adjacent footpath. That would create an anomalous and wholly confusing situation not merely for those upon whom responsibility for enforcement will fall but for the dog-owning public. For example, would an offence be committed if a dog's stools straddled the gutter and the kerb? Would dog owners, secure in the knowledge that they could not be prosecuted for failing to clear up their dog's mess in a gutter, seek to sweep such mess into such a location or even consciously train their dogs to do their business in gutters?
Despite some of the comments made by Members of the Committee today, faeces deposited in the gutter are not necessarily swept away. This summer's drought is evidence of that fact. I would hope that with those points in mind my noble friend might feel able to withdraw Amendment No. 1.
In common with Amendment No. 1, Amendment No. 2 also represents a departure from current practice with dog-fouling by-laws which, as I have already said today, the Bill is intended to replace. As my noble friend the Minister said, under current practice there is not, and
Accordingly, what should lie at the heart of our thinking with respect to this issue is a recognition that local authorities themselves are best placed to identify where in their areas bins may be most usefully and effectively sited. After all, they have such flexibility with regard to the provision of litter bins, and so it is entirely appropriate and reasonable that the same flexibility should persist with regard to the provision of dog waste bins.
Good legislation has about it the character of pragmatism and practicality. If the price that a local authority has to pay to enforce its dog-fouling powers under the Bill is the blanket provision of dog faeces bins, it is a price which many, if not all, authorities would be reluctant to pay. Financial considerations would represent one aspect of their thinking, but what is more important, the cost in terms of time of fulfilling such an obligation would be so high as to render the Bill unworkable. In the light of those comments, I hope that my noble friend may not feel the need to press the amendment.
Lord Kimball: I am most grateful to my noble and learned friend Lord Simon for his support for these two amendments. We can summarise his feelings. He objects to what I would call the urbanisation of the countryside. I believe that all Members of the Committee were sympathetic when he stressed the importance of local people and the parish councils being consulted about any of these designations. I share his disappointment when he said that he found no cogent reason given as to why the amendment should not be accepted.
I am grateful to my noble friend Lord Campbell for pointing out the unrealistic nature and the difficult practice required by the Bill. I hate to have to say so, but many of us on this side of the Committee found the reply of my noble friend the Minister on behalf of the Government a little disappointing. As he said, he gave us the brush-off. We shall have to return on Report to the whole problem, as the promoter has said, of there being a little flexibility on the whole question of the provision of bins.
I should hate anyone to think that we on this side of the Committee were not sympathetic to the important and realistic point made by the noble Baroness, Lady Hamwee. There are some pretty nasty diseases, including blindness in children, associated with this problem. That is why we must proceed with care. I am most grateful to my noble friend, the Bill's promoter. Throughout our discussions he has been nothing but helpful and flexible. He has tried to meet our objections. It is because of that spirit and what he has already said