27. Section 1 of the Wild Mammals (Protection)
Act 1996 prohibits certain specified acts (kicking, beating etc.)
from being committed against wild mammals, with intent to inflict
unnecessary suffering. The offence is triable summarily, with
a maximum penalty of 6 months imprisonment and/or a fine of level
5 on the standard scale (currently £5,000).
28. Section 2 of that Act provides exceptions
from the offence in certain cases, including mercy killing and
humane killing of mammals taken in the course of shooting, hunting,
coursing or pest control activity.
29. This Bill replaces section 1 of the 1996
Act so that it is the intentional causing of undue suffering itself
that constitutes the commission of an offence, rather than doing
a particular act. It also replaces the list of exceptions in section
2 of the 1996 Act, so that (in particular) acts done in accordance
with a "recognised code" are excepted unless the suffering
caused was avoidable. A "recognised code" is a code
from time to time published by an authority recognised or established
by regulations (paragraph 4 below). Acts done in the "normal
and humane conduct of a lawful and customary activity" will
be excepted automatically, regardless of what is in any code.
30. Clause 1(3) of the bill (by insertion of
a new section 2A in the 1996 Act) enables the Secretary of State
to recognise existing bodies, or establish new ones, which may
issue codes which will be relevant for determining whether or
not the exception contained in section 2 of the 1996 Act will
apply. The clause also enables the regulations to create tribunals
which may (either instead of, or as well as, the usual summary
courts) deal with offences under the 1996 Act. The regulations
are subject to affirmative procedure.
31. Although the regulations may recognise or
establish approving bodies, they cannot provide for any direct
control over the content of the codes, nor does the bill itself
make any such provision. Accordingly, the effect of the delegation
is that the content of a code which will determine whether or
not a person has committed a criminal offence will be subject
to no Parliamentary control, even though the regulations dealing
with the approving body will be subject to affirmative procedure.
We consider this to be inappropriate delegation.
32. The new clause 2A enables the Secretary of
State to provide by regulations for criminal offences to be tried
outside the usual criminal courts. We consider that this is
inappropriate delegation. Any such radical departure from normal
procedures would require the details of the tribunals, and the
limits of their jurisdiction, to be set out in primary legislation.