Hunting Bill

Public Bill Committee, 8 February 2001.

Standing Committee B

Hunting Bill

John Bercow (Conservative, Buckingham)

On a point of order, Mrs. Roe. Before we proceed to consideration of the amendments, may I seek your guidance? You and Mr. O'Hara will be aware that the Government indicated that they might be minded to accept amendment No. 58, which stands in the name of my hon. Friend the Member for Aylesbury (Mr. Lidington). It would be helpful to know whether they have come to a definite decision and, if so, whether they could advise us accordingly at the start of proceedings.

Marion Roe (Conservative, Broxbourne)

I note the hon. Gentleman's remarks.

Jane Kennedy (Labour, Liverpool, Wavertree)

As I said when we were discussing amendment No. 58, the arguments advanced in favour of it held a great deal of merit. However, it is for the Committee to determine a view on it. If the hon. Member for Buckingham (Mr. Bercow) puts the amendment to the Committee, it will be up to individual Members to make up their own minds on it.

Marion Roe (Conservative, Broxbourne)

I note what hon. Members have said and I shall call amendment No. 58 when we reach the appropriate point.

Edward Leigh (Conservative, Gainsborough)

On a point of order, Mrs. Roe. In view of the important announcement that the Scottish Parliament will apparently allow foxhunting on licence in Scotland, have you received any notification from the Parliamentary Secretary that she wishes to make a statement on that major development?

Marion Roe (Conservative, Broxbourne)

That is not a point of order for me. I am sure that the Parliamentary Secretary heard what the hon. Gentleman said.

Edward Garnier (Conservative, Harborough)

I seek clarification, Mrs. Roe. You said that, at the appropriate time, you would allow the Committee to reconsider amendment No. 58. When is that time likely to be?

Marion Roe (Conservative, Broxbourne)

When we reach that amendment according to the agreed order.

Alun Michael (Labour/Co-operative, Cardiff South and Penarth)

On a point of order, Mrs. Roe. Other members of the Committee may, like me, not have understood a word that the hon. and learned Member for Harborough (Mr. Garnier) said. What was the question to which you responded?

Marion Roe (Conservative, Broxbourne)

The hon. and learned Gentleman wanted to know when I would call amendment No. 58, because I have accepted that the Committee wishes it to be called. I said that I would call it when we reach that point according to the agreed order. Schedule 3 Hunting with Dogs: Supervision

Schedule 3 - Hunting with Dogs: Supervision

Edward Garnier (Conservative, Harborough)

I beg to move amendment No. 50, in page 20, line 21, leave out `prove' and insert `show'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to take the following amendments: No. 106 in page 20, line 21, leave out `prove' and insert `claim'.

No. 107, in page 20, line 24, at end insert—

`( ) The prosecution must then prove that the person charged with the offence was not stalking a fox, hare or rabbit and the conditions in this paragraph were not met.'.

No. 108, in page 21, line 11, leave out `prove' and insert `claim'.

No. 109, in page 21, line 13, at end insert—

`( ) The prosecution must then prove that the person charged with the offence was not hunting rodents and the conditions in this paragraph were not met.'.

No. 110, in page 21, line 23, leave out `prove' and insert `claim'.

No. 111, in page 21, line 24, at end inset—

`( ) The prosecution must then prove that the person charged with the offence was not retrieving a rabbit or hare which had been shot.'.

No. 112, in page 21, line 27, leave out `prove' and insert `claim'.

No. 113, in page 21, line 31, at end insert—

`( ) The prosecution must then prove that the person charged with the offence was not searching for an animal which had been released from captivity or confinement, and the conditions in this paragraph were not met.'.

No. 114, in page 21, line 45, leave out `prove' and insert `claim'.

No. 115, in

`( ) The prosecution must then prove that the person charged with the offence was not searching for an animal which the accused believed was or might be seriously injured, and the conditions in this paragraph were not met.'.

Edward Garnier (Conservative, Harborough)

Amendment No. 50 stands in the name of my hon. Friend the Member for Aylesbury, and I believe that my hon. Friend the Member for Gainsborough (Mr. Leigh) wishes to draw the Committee's attention to his amendments Nos. 106 to 115. However, all the amendments permit discussion of the burden of proof.

You will remember, Mrs. Roe, that on a previous occasion I drew to the attention of the Committee, if not that of the right hon. Member for Cardiff, South and Penarth (Mr. Michael), who does not appear to be listening, the broad outline of my case. Having done so, I do not want to take up a great deal of time expanding on it, as I know that the right hon. Gentleman will have read my earlier remarks, even if he is not listening now.

Edward Leigh (Conservative, Gainsborough)

On a point of order, Mrs. Roe. The right hon. Member for Cardiff, South and Penarth complained that he could not hear, and now he is chatting. Will he please listen to my hon. and learned Friend the Member for Harborough?

Marion Roe (Conservative, Broxbourne)

The right hon. Gentleman has heard the complaint.

Alun Michael (Labour/Co-operative, Cardiff South and Penarth)

On a point of order, Mrs. Roe. It is fair to point out that if we drew attention to the chatting at various times by the hon. Member for Gainsborough, Hansard would be full of references to him, which is perhaps what he wants.

Marion Roe (Conservative, Broxbourne)

It would be helpful for all members of the Committee if the chatting ceased.

Edward Garnier (Conservative, Harborough)

Let the speaking begin.

The amendments would place on the prosecution the onus to prove that an offence had been committed. The Bill provides for exceptions to the general offence of hunting a wild animal with a dog, but those are restricted and would reverse the burden of proof because it is for the defendant to prove that his conduct fell within one of the permitted exceptions. The amendments would provide for the same exceptions to the general offence, but in a way that would impose the burden of proof on the prosecution, not the defendant.

The Bill provides for a range of exceptions to the general offence of hunting a wild mammal with a dog set out in paragraph 1. However, those exceptions are naturally restrictive because they reverse the burden of proof. The onus is on the defendant to show that his actions were consistent with the defences provided in paragraphs 7 to 11 rather than on the prosecution to show that they were not.

It is a general principle of English law that a defendant is innocent until proven guilty. It is for the prosecution to prove guilt beyond reasonable doubt. The reversal of the burden of proof means that a person could be convicted of an offence, even if there were reasonable doubt as to whether he fell within one of the exceptions. The burden of proof is not generally reversed under criminal law unless there is good reason to do so. In this example, there is no reason to amend the burden of proof and that is especially unfair because the definition of the primary offence is so vague.

On a previous occasion, Mrs. Roe, I drew your attention to remarks made by the European Court of Justice in relation to the reversal of the burden of proof. I shall not repeat them, but I invite the Committee to read columns 117 to 123 of Hansard for 25 January, when I set out the arguments that I would have made this morning. I hope that that is convenient for members of the Committee, whom I hope have studied my comments. Rather than burden the Committee with repetition, which offends the hon. Member for Worcester (Mr. Foster) and is not something in which I would wish to indulge, I conclude on the understanding that the Committee has taken my arguments on board.

As a matter of courtesy, I should explain that I have a long-standing constituency engagement that requires me to catch the 11.25 from St. Pancras. I hope to be back this afternoon to hear the Parliamentary Secretary's winding-up speech, but I apologise to any other members of the Committee who wish to speak either for or against these amendments. My absence is not intended as a discourtesy to them.

Edward Leigh (Conservative, Gainsborough)

I shall speak to amendments Nos. 106, 108, 110, 111 and 113 to 115. They relate to the problem of reversing the burden of proof, which is an interesting issue that we must discuss because it is central to the Bill.

The Bill provides for the accused person—presumably halfway through the trial—to prove that they were not committing an illegal act. At page 20, lines 20 to 24, the Bill states:

``It is a defence for a person charged with an offence under paragraph 1 to prove that''—

I emphasise ``prove''—

``(a) the conduct to which the charge relates consisted of stalking a fox, hare or rabbit, and

(b) the conditions in this paragraph were met.''

That places the burden of proof on the shoulders of the accused, so that it will be up to them to prove that they were not hunting a wild mammal with a dog, but merely stalking or flushing out a fox, hare or rabbit.

In other words, that person is guilty until they can prove themselves innocent—yet it has rightly been traditional in this country to assume that people are innocent until proven guilty. The amendments would not change the essence of the Bill by making it easier to hunt with dogs, but would simply re-establish the principle of innocent until proven guilty.

It is important in Committee to develop some sort of thread to one's remarks. The point that I have tried to make time and again is that the Bill is strong enough to ensure that organised hunts will stop, because it will be impossible to maintain them. That would remain the case even if the amendments that I have tabled with my hon. and learned Friend the Member for Harborough were accepted.

I believe that all members of the Committee want to stop unpleasant activities such as hare coursing that is carried out without permission, and the Bill will make that quite easy to deal with. If it is not too derogatory, I refer to people who take part in such activities as white van offenders. They leave the big cities and go to the countryside without permission to carry out unpleasant acts of coursing and the like.

The aim of my speeches over the past two or three weeks has been to protect the honest countryman who is simply trying to go about his business. Gamekeepers and most country people out alone or in small groups do a proper job. Even if they fall foul of the Bill and commit an offence, it will hardly be the great crime of the century if a gamekeeper's dog hunts and kills a rabbit, hare or fox.

Although I may not like it, I have to accept that the House made a decision to ban organised hunting. I am therefore trying to ensure that the Bill has a relatively light touch and that, in stopping organised hunting as Labour Members wish, it does not place too much of a burden on people who find themselves in the dock.

Edward Garnier (Conservative, Harborough)

On the subject of putting people in the dock, this morning I received a telephone call from Mr. Nodder, the representative of the National Gamekeepers Organisation, whose briefing we referred to earlier in our proceedings. He told me that he is very worried that gamekeepers going about their legitimate business—for example, deliberately setting out with terriers to find and kill wild mammals, especially vermin—will become enmeshed in criminal proceedings. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) took up that issue in previous debates. Will my hon. Friend focus on the likely plight of employed gamekeepers?

Edward Leigh (Conservative, Gainsborough)

I hope to do so. I want to ensure, without being too legalistic, that in such a trial of a gamekeeper or other countryman, the burden of proof would be firmly on the prosecution at all times and that the trial would be as simple as possible.

We know that there are various exceptions in part II. In simple terms, it is a defence for a person charged with such an offence to prove that he was stalking or flushing out, engaged in rodent control, retrieving game or recapturing or rescuing animals. Unlike members of the Committee, people in general probably do not realise that such activities are not only lawful, but beneficial. They are good pursuits that help animals and create a balance in the countryside. Nor is it generally recognised that the honest countryman who is taken to court will have to prove his innocence. He will have to prove that he was engaged in such activities, albeit in the light of the balance of probabilities, which in my opinion is unfair.

If amendment No. 110 were accepted, it would be sufficient for the defendant to ``claim'' that he was engaged in such activities, which are lawful, good and benefit the countryside. If amendment No. 111 were accepted, the prosecution would have to prove

``that the person charged with the offence was not retrieving a rabbit or hare which had been shot.''

Similarly, if amendment No. 113 were accepted, the prosecution would have to prove

``that the person charged with the offence was not searching for an animal which had been released from captivity or confinement, and the conditions in this paragraph were not met.''

The Parliamentary Secretary will doubtless say that the amendments are not drafted properly, but I claim no great expertise in this part of the law—I am simply trying to do my honest best. She will probably point to precedents in reversing the burden of proof halfway through a trial and placing it on the defendant.

For example, if, on stopping a van being driven around Canary wharf, the police find explosives in the back, under the terms of the Prevention of Terrorism Act the driver must prove that he did not intend to commit a terrorist act. However, terrorism is a serious and reprehensible activity that is dangerous to society, for God's sake. We in this country value and love civil liberties so we put the burden of proof on the prosecution, but we also take the view that a person caught driving around Canary wharf in a van full of explosives must give a good reason why they do not intend to blow the place up. In such a case, it is not necessary for the police to prove intent.

If one's dog chases and kills a rabbit, it is hardly the crime of the century. Why, therefore, should a gamekeeper or countryman on a modest salary have to hire a lawyer to prove his innocence? It should be for the prosecution to prove guilt. I freely admit that that might constitute a small burden on the prosecution, but it is one that it can bear.

John Maples (Conservative, Stratford-on-Avon)

Did not it become to necessary to change the law in respect of terrorism because it was proving almost impossible to secure convictions? It is difficult to think of a legal explanation for driving around a van full of explosives, but in this case we are dealing with exceptions that are not only legal but desirable and which are encouraged in the interests of animal welfare and management of the countryside. The distinction seems perfectly clear. When it is impossible to think of any reasonable or legal explanation for doing something—such as carrying explosives in a car—it is reasonable to put the burden of proof on the defendant. However, we are discussing an activity that is not only legal and reasonable, but should be encouraged.

Edward Leigh (Conservative, Gainsborough)

My hon. Friend explains very well the point that I have been trying to make. I accept that people want to stop hunting with dogs under the terms of the Bill, but the so-called exceptions are not exceptions because they go to the heart of the Bill and countryside activities. Rodent control is a burden placed on landowners; they have no choice. A landowner could be hauled before the beak for not engaging in rodent control. Under the Bill, he could be hauled before the beak for undertaking rodent control in the wrong way.

The proposal goes to absurd and ridiculous lengths. I am sure that the majority of hon. Members, who have a logical and justified view and a sense of balance in these matters, will be able to rely on the early parts of the Bill to achieve their purpose. This part of the Bill was drafted not by the Government, but by Deadline 2000. I know why it was drafted in this way and it is unduly onerous.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I want to draw attention to an even more alarming possibility for someone who thinks that he will be brought before a court for engaging in a legitimate activity; for example, the goatherd to whom I have referred who needs a dog to locate and count the wild goats in the Cheviots. If someone takes out a malicious prosecution against him because he is thought to be interested in a bit of fox pursuing, his solicitor may tell him that the safest course is to say that he was after rabbits, was carrying a gun and intended to shoot them fresh from cover, because the Bill does not provide a safe defence against the innocent activity in which he was engaged—counting goats.

Edward Leigh (Conservative, Gainsborough)

It would be ridiculous if it were safer for gamekeepers and honest countrymen to walk around the countryside carrying shotguns. We do not want to encourage that.

The burden of proof is important and, in our criminal law, it has always been placed firmly on the prosecution, except in particular circumstances. Viscount Sankey, the former Lord Chancellor, called it the golden thread in Walmington v. DPP. He said that

``no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England''

No attempt to whittle it down can be entertained. We should not allow prosecutorial convenience or laziness to sway that basic principle of English law. I urge hon. Members, particularly Labour Members who are genuinely concerned about civil liberties, to consider Viscount Sankey's fine phrase, which is a beautiful part of the civil liberties of our nation.

We are discussing a matter that could be serious for some people. They may face fines of £5,000, a life ban on keeping dogs—making it impossible for them to do their job—having to surrender any horses, acquiring a criminal record and so on. The matter is serious.

If hon. Members are not satisfied with the argument of the common law, the European Court of Human Rights and its series of firm judgments have made it clear that it is normally not wise to impose a reversal of the burden of proof. Dare I say that the matter is dealt with in ``Archbold'' in paragraphs 16-77 and 16-78?

Article 6(2), which we debated in the House in terms of human rights—this is where the Parliamentary Secretary is right—

``does not prohibit rules which transfer the burden of proof to the accused to establish a defence, provided the overall burden of proving guilt remains with the prosecution. . . . Neither does Article 6(2) necessarily prohibit the operation of presumption of law or fact. . . . However, any rule which shifts the burden of proof, or which applies a presumption operating against the accused, must be confined within reasonable limits.''

I ask members of the Committee to think through the matter and, given the trivial nature of the offence, consider whether it is reasonable to reverse the burden of proof in all the circumstances. I am not sure that it is.

The Parliamentary Secretary has been very reasonable in the past and acknowledged on Tuesday that we had made some valid arguments. I hope that she will at least be prepared to re-examine this point; I cannot ask for more. If she does, many people in the countryside will breathe a sigh of relief and come to the conclusion that the Government are prepared to produce a Bill that does not impose too onerous a burden on people who are simply trying to carry out an honest job in an honest way in the English countryside.

John Maples (Conservative, Stratford-on-Avon)

I want to reinforce a few of the points made so well by my hon. Friend the Member for Gainsborough, but to approach them from a slightly different perspective.

The Parliamentary Secretary and her Home Office colleague have repeatedly said, ``This is Deadline 2000's draft. Ask them about all the details.'' However, we are talking about an issue of public policy; about whether the burden of proof should be reversed in a particular case. Parliamentary Secretaries cannot get out of their responsibility for that aspect of the amendments by saying, ``This is somebody else's draft. You will have to ask them why falconry is in or out or why rodent control on somebody else's land is in or out.'' There is a fundamental difference when we are talking about creating a rare exception to the principle of law that the burden of proof is on the prosecution.

I hope that the Parliamentary Secretary will take that point seriously and recognise that the Government are responsible for explaining why it is necessary in this Bill—which, as my hon. Friend the Member for Gainsborough says, creates, in many circumstances, relatively trivial offences—to breach that principle and reverse the burden of proof. No one is claiming that doing so is unique, but in other such cases, it has been for something that is very serious and where it would be almost impossible to prove otherwise.

The Bill is designed to ban organised hunting. That was what the House voted for, and we keep coming back to it. The ban includes beagling, hare coursing, foxhunting, harriers and so on. We all know an organised hunt when we see it, and it is not a goatherd in the Cheviots walking around with his dog or somebody taking their dog for a walk in rural Warwickshire, where I live. We are clear about that distinction. We getting into difficulty because the Bill attempts to go further than banning organised hunting to the banning of other activities beyond the border between what Deadline 2000 wants to promote and what is, on the other hand, not only legal but desirable. In the case of rodent control, there is even a legal obligation on a property owner.

All the exceptions are concerned with the protection of livestock and crops, which farmers are entitled to do. They include getting food by hunting rabbits or hares, falconry—I do not know why that is included—rodent control, retrieving wounded game, recapturing escaped animals and rescuing wounded animals. All of those are not merely technical exceptions to the ban on hunting, but desirable ends in themselves. They are proper and desirable uses of dogs by people who are legitimately engaged in managing their property or wildlife in the countryside.

The distinction that the Bill draws is not between something that is bad and something that ought to be criminal, but between something that is positively good and to be encouraged and something on the other side of the burden of proof that would be a criminal offence.

The effect of reversing the burden of proof is that a person such as the goatherd in the Cheviots mentioned by the right hon. Member for Berwick-upon-Tweed could be convicted on the balance of probability. He could be prosecuted for having been caught with a gun after chasing and killing a rabbit—which might be fairly easy to establish—say that he was doing something else that is covered by the exceptions in the Bill and then have to prove it. Admittedly, the standard of proof that he would have to achieve is only the civil standard of the burden of probability. However, if the jury or the magistrate decided that there was a 50:50 probability—in that he was as likely to be guilty as not—they would convict him because he had failed to establish the defence. Not only does the Bill try to establish a borderline—it is a very fine line—between desirable activities to be encouraged and criminal activities, but someone could find himself on the wrong side of it on the civil standard of proof. That is not only perverse but positively wrong.

I do not think that hunting should be banned, but even those who do—including most Labour Members—mean organised hunting, and we all know what that is. They cannot seriously be saying that the borderline between what the goatherd in the Cheviots is or is not doing is of enormous public importance and involves an activity so awful that it should be banned by criminal law. We never intended to get into such territory.

If the large numbers of right hon. and hon. Members who took part in the debate on Second Reading and voted on it but are not on the Committee knew that such criminal offences were being created and that, moreover, the burden of proving innocence of those offences was being reversed and placed on the defendant, they would be amazed, as would all those out in the country who write to us asking for hunting to be banned. We are talking about the Government being prepared, in relatively trivial circumstances, to reverse a fundamental principle of English common law.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The proponents of the schedule are aware of the need to find a balance. Let us remember that gun packs are not being banned. The schedule seeks to draw a distinguishing line, which is still vague at the moment. Does the hon. Gentleman agree that there is no great sacrifice of principle in taking on board the burden of proof argument that he is advancing, but there is a sacrifice of justice if we do not?

John Maples (Conservative, Stratford-on-Avon)

The hon. Gentleman puts the argument cogently. I am hoping that the Parliamentary Secretary will be able to give some ground in that respect.

I am a lapsed lawyer, and it is a long time since I had to engage in this sort of stuff. If one asked most non-lawyers—or, indeed, schoolchildren—for an illustration of the fundamental principles of English criminal law, the first thing that would come to their minds would be the principle that one is innocent until proved guilty. It is the job of the prosecution or the state to prove that one is guilty before one is punished or deprived of one's liberty. Yet the Government are prepared to reverse that principle in relatively trivial circumstances.

My hon. Friend the Member for Gainsborough has quoted from ``Archbold''. I shall quote from a former Lord Chief Justice, who said:

``The common law was fiercely resistant to a burden of proof being placed on a defendant.''

When Parliament did so

``it had to use clear language if it was to achieve its purpose.''

The European Court of Justice recently stated:

``The reverse burden of proof is simply not lawful, unless there is a necessity that drives the imposition of it.''

It will be rich irony if the Bill fails on one count or another as a result of the European convention on human rights. We wait to see whether it does. We resisted the introduction of the convention.

Edward Leigh (Conservative, Gainsborough)

The Bill's supporters must take on board that point about the convention. I am not giving away secrets, but many people are actively thinking of taking this issue to the European Court. If the Bill's supporters push their boat out too far, they will make it even more likely that the boat will be stranded on the beach of European law. If they want the Bill to survive, they should beware.

John Maples (Conservative, Stratford-on-Avon)

My hon. Friend makes a good point. There are at least two bases on which the proposed legislation could be challenged under the European convention on human rights. One is the way in which the law bans hunting, and whether that is an intervention in people's liberty and use of property. That fundamental aspect of the Bill may be challenged. The Government appear to have come to the conclusion that the Bill is not vulnerable to a challenge on those grounds; the Home Secretary has at least made a statement to that effect.

We are discussing another aspect of the Bill that may be challenged. It is a subsidiary, rather fundamental, aspect of the Bill: whether the burden of proof is on the defendant or the prosecution in subsidiary and incidental offences. We can refer to the fundamental principles of common law, the Lord Chief Justice and countless cases in ``Archbold''. I am glad that my hon. Friend the Member for Gainsborough brought ``Archbold'' along, so that we can all refer to it—[Interruption.].

Marion Roe (Conservative, Broxbourne)

Order. There is too much chatting going on. I cannot hear what the hon. Gentleman is saying. If hon. Members wish to have a conversation, perhaps they should have it outside.

John Maples (Conservative, Stratford-on-Avon)

I am grateful, Mrs. Roe. We are discussing not what we have been arguing about a great deal in Committee—whether hunting in one form or another should be illegal—but subsidiary and somewhat incidental offences that relate to a fundamental principle of criminal law. The proposal has been resisted for hundreds of years by common law, by the courts and by Parliament, except in exceptional circumstances. I shall be interested to see whether the Parliamentary Secretary argues that this is an exceptional case, which therefore requires the burden of proof to be reversed. Such a reversal has been resisted also by the European Court of Justice and therefore, by implication, in the European convention on human rights. Arguments of precedent and principle seem to stack up overwhelmingly on our side of the argument. For the Government to prove that this situation is so different and so important that the burden of proof must be reversed seems to me an impossible task, but I wait to see whether the Parliamentary Secretary can do it.

We are not talking about organised hunting. All right; we can ban organised hunting. We all know an organised hunt when we see it. That is not what these offences and exceptions are about. They are ingredients of the offence. We are defining, in what the Bill describes as exceptions, the ingredients of an offence, which have to be proved. There is not an offence if one is flushing out game for the purposes of falconry. Therefore, the prosecution should have to prove the whole offence. The exceptions are really areas to which the offence does not extend. It is not as though there are exceptions if one commits the offence because one is drunk, because one is eight years old or because one is made to. In the circumstances that we are debating, it is not an offence to use one's dog to flush out a rabbit for the purpose of shooting. However, the Bill makes it an offence unless one can prove that one was doing so.

Some fundamental points are at stake. We shall make bad law if we reverse the burden of proof in such somewhat trivial circumstances. We will draw a dividing line not between what is wrong but not criminal on the one hand and what is wrong and criminalised by Parliament on the other, but between what is wrong and to be criminalised on one hand and what is legal, desirable and to be encouraged on the other. In creating fine lines between right and wrong, we should not put the burden of proof on the defendant, who will often be a country person—a farm labourer, shepherd, goatherd or gamekeeper—who does not have the means to go to lawyers or the ability to get good legal advice and legal representation to make what may turn out to be a complicated point in court.

Edward Leigh (Conservative, Gainsborough)

We must emphasise this point. I intended to do so, but I did not; my hon. Friend is doing so very well. I hope that the Parliamentary Secretary will listen and try to reply to it. Traditionally, the burden of proof has been reversed when the accused has committed an offence of carrying explosives, of murder or of whatever it is that is wrong. In those circumstances, the accused can claim, ``I committed the offence, but it was a mistake'', that it was a matter of automatism, that the victim gave her consent, that drink was to blame or that his age was a factor. However, the Bill provides for different circumstances, which makes it a complex legal matter that must be considered in the other place. When one is stalking, retrieving an animal or any of the other so-called exceptions, one is not committing an offence. That is a powerful argument.

John Maples (Conservative, Stratford-on-Avon)

I hope that the Parliamentary Secretary will respond to the amendments in the spirit in which they were tabled. We are being invited to pass legislation that breaches a fundamental principle of English law that has been around for hundreds of years. Indeed, exceptions to that rule are so rare as to prove and reinforce it. Moreover, the Bill is possibly in breach of the European convention on human rights. It would be extraordinary if we were to draw a dividing line between criminal conduct and conduct that is right—and, in the case of rodent control, conduct that is actually a legal obligation imposed on property owners—rather than between criminal conduct and conduct that is wrong but not quite criminal.

I hope that the Parliamentary Secretary will not claim that Deadline 2000 is responsible for the schedule, which is an excuse often used by Labour Front Benchers. The notes that I have seen passed to her by civil servants belie that argument. It seems to me that she, or at least her civil servants, concedes that arguing this point is a Government responsibility. It would not go the root of the Bill to concede the amendments, but it would meet a fundamental objection.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The issue has been highlighted and does not need to be repeated, but it is important to hear how the Parliamentary Secretary feels we could make progress. Deadline 2000 has sponsored the schedule, but the Committee is responsible for ensuring that it is workable and just. To that extent, I hope that the Parliamentary Secretary will share the Government's perspective on the issues, rather than saying, ``This is what Deadline 2000 wanted.'' I have no doubt that Deadline 2000 also wants workable legislation that is seen to be fair, although I imagine that that is a difficult issue for the Parliamentary Secretary to discuss. Nevertheless, the Government should be committed to tackling head on the challenges concerning natural justice that have been highlighted.

Jane Kennedy (Labour, Liverpool, Wavertree)

First, I say to the hon. Member for Gainsborough that this is not a complicated legal issue. I can understand it as a non-lawyer, and I hope to be able to explain it to the Committee. One does not need a fine legal brain to understand this section of the schedule.

My reply to the hon. Members for Stratford-on-Avon (Mr. Maples) and for Montgomeryshire (Mr. Öpik) is that hon. Members who support schedules that were not supported by the House are wrong to constantly chide the Government for the terms in which we discuss the schedule. It was a decision of the whole House to support the schedule. Because Opposition Members happen to be the ones advancing the arguments against the Bill as decided by the House, they are wrong to suggest that all their opponents are on the Government Benches. This is a cross-party matter. In the Committee of the whole House, schedule 3 was supported by hon. Members from all parties.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I feel strongly about what the Parliamentary Secretary has just said, because it is most unfair. Had the schedule for which I voted in the Committee of the whole House been accepted instead, I would still have expected the Minister and her civil servants to comb through it to ensure that it would achieve its intended effect, and to table relevant amendments where necessary. Indeed, I would have expected nothing else, so she cannot criticise me and others for performing the same service in respect of this schedule.

Jane Kennedy (Labour, Liverpool, Wavertree)

I simply wanted to put on the record that, in my opinion, criticisms of the Government's defence of a schedule that was supported by the whole House are unfair. Indeed, there are hon. Members on the Opposition Benches of the Committee who voted for the schedule.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I want to reassure the Parliamentary Secretary that it was not my intention to criticise her, the Government or those who proposed the schedule, which it is our purpose to discuss. My plea, as my right hon. Friend the Member for Berwick-upon-Tweed said, was simply for her to ensure that it will prove to be workable.

Jane Kennedy (Labour, Liverpool, Wavertree)

I am grateful for that reassurance.

John Maples (Conservative, Stratford-on-Avon)

The Parliamentary Secretary picked up on the fundamental principles to which my hon. Friend the Member for Gainsborough and I referred. However, the fact that a Bill has secured its Second Reading does not mean that the House has agreed to every detail in it. If that were so, there would be no need for Standing Committees. We are not arguing about the Bill's fundamental principles, for which the House clearly voted—[Interruption.] Well, we are not trying to do that in this debate; we are considering points of detail. The Parliamentary Secretary seems to be saying, ``The House voted for the schedule, so we don't need to discuss it.''

Jane Kennedy (Labour, Liverpool, Wavertree)

Absolutely not. I was simply putting my opinion on the record. We are discussing and carefully scrutinising a schedule that was supported by the whole House and, in that regard, the Committee has so far conducted itself perfectly properly.

Alun Michael (Labour/Co-operative, Cardiff South and Penarth)

As my hon. Friend said, the Committee is behaving perfectly properly, but does she note the interesting admission by the hon. Member for Stratford-on-Avon that, in previous debates, he and his colleagues have indeed tried to argue against the Bill's fundamental principles?

Jane Kennedy (Labour, Liverpool, Wavertree)

I shall not try your patience any further, Mrs. Roe; I shall return to the substance of the amendments.

Gordon Prentice (Labour, Pendle)

I do not want my hon. Friend the Parliamentary Secretary to leave the issue of cross-party support for the schedule without my informing the Committee of a newsletter from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), which states:

``Liberal Democrats have concluded that hunting with dogs should be banned.''

I wonder for whom else the hon. Gentleman was speaking.

Jane Kennedy (Labour, Liverpool, Wavertree)

As the hon. Member for Lewes (Mr. Baker) has said, Liberal Democrat members of the Committee represent all four strands of opinion, which is nothing new.

We touched on the serious matter of the reversal of the burden of proof, which I prefer to describe as the creation of a primary offence with various defences. We discussed that in one of our earlier debates, but I am glad to have the opportunity to put the position clearly on the record. We discussed that in one of our earlier debates, but I am glad to have the opportunity to put the position clearly on the record.

Amendment No. 50 would have no effect; it would make no difference. As I shall attempt to demonstrate in a moment, there are many Acts that contain the so-called reversal of burden of proof, so hon. Members are mistaken when they say that there are not many precedents. In some the word ``show'' is used and, in others, the word ``prove''. I have checked with parliamentary counsel and it appears that, in this context, the two terms are totally interchangeable. The standard of proof that an accused person has to satisfy is identical, whichever term is used. I suspect that the hon. and learned Member for Harborough is more interested in the principle of the matter than the semantics. That brings me on to the amendments tabled by the hon. Member for Gainsborough.

The first and most obvious point—this explains why I do not like the term ``reversal of burden of proof''—is that, in the Bill, as with any other criminal offence, it remains the responsibility of the prosecution to prove to the court beyond reasonable doubt, as hon. Members have said, that the accused committed the offence with which he or she is charged. Unless and until each and every element of the offence has been proved, the person remains innocent. That principle remains at the heart of English criminal law and the Bill does not depart from it.

The formulation of legislation based round a principal offence, to which there are a number of defences—exceptions as they are called in the Bill—is nothing new. Perhaps it might be helpful to give the Committee a few examples. In the Forgery Act 1861, section 34—[Interruption.]—with which hon. Members are familiar, provides that

``it is an offence for a person to acknowledge any recognizance, bail, judgment deed or lawful instrument in the name of any other person without lawful authority or excuse (the proof whereof shall lie on the party accused).''

Another example is the Sexual Offences Act 1956—[Interruption.] I am offering a wide range of examples to demonstrate that this is not a rare exception in English law. Section 47 of that Act states:

``Where in any of the foregoing sections the description of an offence is expressed to be subject to exceptions mentioned in the section, proof of the exception is to lie on the person relying on it.''

Such exceptions are to be found in relation to a number of offences in the Act, such as those, in section 14, of indecent assault and, in section 6, of unlawful sexual intercourse with a girl under 16.

Section 2(1) of the Homicide Act 1957 provides that a person who kills another shall not be convicted of murder if he was suffering from diminished responsibility. Section 2(2) provides that

``on a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.''

There are more examples, to which I shall turn in a minute.

John Maples (Conservative, Stratford-on-Avon)

The Parliamentary Secretary has enumerated some very serious criminal offences; murder, indecent assault, paedophilia, rape and forgery. I have not specifically researched this, but I suspect that the reason for those exceptions where the reversal of the burden of proof was introduced was that there had been cases in which people had used that as their defence and got away with it. In subsequent legislation, the burden of proof in such circumstances was reversed. That is not so with this Bill—[Interruption.] The right hon. Member for Cardiff, South and Penarth may want to intervene on the Parliamentary Secretary. I note that since he ceased to have control over the National Assembly for Wales, it has seen sense and is having an inquiry into the matter, rather than simply accepting our legislation.

The offences cited as examples by the Parliamentary Secretary are serious and there is a reason for the exception. We have not yet tried in this case, so we do not know. If the Bill became law and people used that defence and got away with it, one could understand the Parliamentary Secretary returning to say that the law must be changed. That is not the case; she has not cited a relevant example.

Jane Kennedy (Labour, Liverpool, Wavertree)

Not yet, but I am coming to that. There are other examples in the Criminal Justice Act 1988 and the Chemical Weapons Act 1996.

Edward Leigh (Conservative, Gainsborough)

Chemical weapons?

Jane Kennedy (Labour, Liverpool, Wavertree)

Let me make my point, because the Committee may be interested. Section 2 of the Chemical Weapons Act 1996 creates offences relating to the use, development, possession and so on of a chemical weapon. Section 2(6) provides that in proceedings for certain of the offences

``it is a defence for the accused to prove''

and so on. That Act was passed in 1996. I could cite many more examples. The list that I gave to the Committee illustrates how widespread the formulation is, how long established it is and that it has been used in connection with serious offences. I deliberately chose examples of serious offences to demonstrate that this is not a new-fangled device; nor is it considered lightly in law.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The Parliamentary Secretary has cited examples in which people seem to have carried out murder, rape and the manufacture, possession and trafficking of chemical weapons in circumstances that make them appear guilty, but for which exceptions are provided. How will people who have been legitimately engaged in country pursuits for years feel about being compared to murderers, rapists, paedophiles and traffickers in chemical weapons? Does she not realise that the offences covered in the Bill are in a totally different league?

Jane Kennedy (Labour, Liverpool, Wavertree)

I am coming to the exceptions, but I want first to deal with some of the protestations from the Committee.

I gave the example of the Chemical Weapons Act 1996, which was enacted during the previous Parliament. All the representatives of the official Opposition in the Committee, with one or two exceptions, were members of that Parliament; not one of them voted against or spoke against the Chemical Weapons Bill.

It is worth pointing out that an offence with defences features prominently in animal welfare legislation and I now come to examples that are closer to the issue under discussion. The Deer Act 1991, the Protection of Badgers Act 1992 and the Wild Mammals (Protection) Act 1996 all contain a basic offence, which is not committed if the person concerned can demonstrate that his or her behaviour fell within the terms of a number of exceptions. Those Acts are directly analogous to the Bill.

There is a good reason for sometimes reversing the burden of proof in legislation. It generally appears when it relates to matters that are within the knowledge of the defendant. I shall give an obvious example. There are many instances in which it is unlawful to commit a certain Act, but it is lawful to do so if the person concerned has a valid licence. The requirement is placed on the person to demonstrate that he or she has that licence. That is obviously sensible because it is easier and more practicable for the person concerned to demonstrate that he or she has a licence than for the prosecuting authorities to prove that he or she does not. That principle applies to the Bill.

Hon. Members will see that the terms of the exceptions concern matters within the knowledge of the person who is hunting. For example, it is easier for someone who has been hunting with dogs to demonstrate that he or she was seeking to retrieve a rabbit or hare that had been shot or that he was acting with the permission of the landowner than for the prosecuting authorities to prove the contrary.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

No system for licensing is included in schedule 3. I agree with much of what the Parliamentary Secretary has said, which is why the Middle Way Group thought that there should be a licensing system. Is the Parliamentary Secretary now saying that she accepts that a licensing system would be enforceable and a reasonable way forward? If so, would she be willing to consider modifying the schedule on Report?

Jane Kennedy (Labour, Liverpool, Wavertree)

I meant the term ``licensing'' in the loosest sense of the word. In all the legislation that I have cited where the obligation is placed on the person suspected of having acted illegally to prove or show that they have not done so, the test that they must satisfy is, as hon. Gentlemen know, the civil test of balance of probability. They do not have to meet the criminal test of proof beyond reasonable doubt. That was firmly established in R v. Hunt, as reported at—

John Maples (Conservative, Stratford-on-Avon)

``Archbold''?

Jane Kennedy (Labour, Liverpool, Wavertree)

I am in awe of how well read the hon. Gentleman is. He clearly sleeps with ``Archbold'' under his pillow.

The Bill is exactly the same in such a respect. The standard that the accused must meet is the balance of probability.

John Maples (Conservative, Stratford-on-Avon)

When I first read the proposal, I thought that it dealt with the point, but the more I think about it, the more I realise that it does not. If the prosecution succeeds in proving that a person was out with their dog and it killed a rabbit, it is then seeking to prove the exception. If the prosecution cannot prove that, it is 50:50 whether the jury or the magistrate believes it. The person would, in effect, be convicted on the basis of proof on the balance of probabilities and not beyond a reasonable doubt. That is why the principle arises; reversing the burden of proof reduces the burden of proof of all the components of the offence. Some of them have to be proved beyond a reasonable doubt, but many others—those surrounding the exception—have only to be proved on a balance of probabilities. Therefore, people could be convicted on a 51:49 split as opposed to the overwhelming preponderance needed where an offence must be proved beyond reasonable doubt.

Jane Kennedy (Labour, Liverpool, Wavertree)

If a person were charged with the offence under the Bill and did not have one of the defences outlined in it, they would not be able to argue that defence and the court would have to make up its mind on the evidence before it.

If the amendments were accepted, a person accused of hunting could simply suggest, without adducing any evidence, that one or all of the defences applied and then leave it to the prosecution to disprove beyond reasonable doubt each and every defence suggested. That is a novel idea, and I am not aware of any similar example on the statute book.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

How would the Parliamentary Secretary prove that her dog was seeking an injured animal at the time? When she gets to the magistrates court—indeed, after apprehension—the animal may have disappeared and gone to earth. How does she prove that her dog was seeking an injured animal?

Jane Kennedy (Labour, Liverpool, Wavertree)

My hon. Friend the Member for West Lancashire (Mr. Pickthall) says from a sedentary position that one would be able to argue the case. For example, one would have reasonable grounds for believing that the injured animal was there. One would be able to show what animal the dog was chasing and one could make an argument, but it would be for the court to decide on the merits of each case.

The hon. Member for Gainsborough—and, to an extent, the hon. Member for Stratford-on-Avon—prayed in aid the European convention. It has been suggested in some quarters that, because of the so-called reversal of the burden of proof in it, the Bill is not compatible with the European convention. I reject that view absolutely. My right hon. Friend the Home Secretary has signed a statement that, in his view, the Bill is compatible with the ECHR. Clearly he would not have signed such a statement if he took a contrary view. It will come as no surprise to the Committee that I share his view. Under the terms of the Human Rights Act 1998 our courts are required to interpret all legislation in accordance with the ECHR. There appear to be no problems with the myriad pieces of legislation that contain the reversal of the burden of proof, and I see no reason why the Bill should present any difficulties if it becomes an Act.

Given the nature of the activity with which the Bill deals, the formulation of the offence and its defences seem entirely appropriate. As I hope I have been able to demonstrate to members of the Committee, it is not an unusual formulation. It appears throughout our legislation; particularly in animal-related Acts. Therefore, it would not be right to accept the amendments in the names of the hon. Members for Gainsborough and for Aylesbury. Accordingly I invite the hon. Member for Aylesbury to seek to withdraw the amendment.

Edward Leigh (Conservative, Gainsborough)

I am disappointed by the Minister's answer, particularly as she seemed to be reading something that had clearly been written in advance of my remarks this morning. Many of us have been Ministers and I know that Ministers have to rely on advice.

The purport of the Minister's speech was that there are precedents for reversing the burden of proof, but as I pointed out several times, I am aware of that. As my hon. Friend the Member for Stratford-on-Avon argued extremely well, the burden of proof has been reversed in cases where the prosecution has proved, for example, that a murder has been committed, that an explosion has occurred, that unlawful sex has taken place and even that a badger has been killed. In turn, the defence has argued that the incident in question was an accident or an honest mistake, that there was provocation, duress, consent on the part of the alleged victim, lack of intent or lack of specific intent due to drink.

Had the Minister been listening, she would know that we accept that, over the years, Parliament and the courts in their wisdom have concluded that if the prosecution proves the core element, the defence must establish proof in arguing that, say, a rape victim in fact gave consent, or that murder was in fact manslaughter because there was no intent.

The case before us is entirely different. The core offence, to which there are exceptions, is not in fact an offence at all. For matters such as stalking, rodent control and retrieving an animal, there should be a different and novel procedure. The Parliamentary Secretary failed to address the point that such activities are on the bottom rung of criminal behaviour. Even deliberate hunting is surely low on the list of criminal activities. Moreover, such activities are welcomed by society. No one welcomes murder, rape, burglary, and the running over of pedestrians, so society takes the view that the exceptions must be proved in such cases. However, society requires landowners to engage in activities such as rodent control.

The Parliamentary Secretary has failed to answer our questions, so in the time available to us we must press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 18.

John Bercow (Conservative, Buckingham)

I beg to move amendment No. 52, in page 20, line 22, leave out `fox, hare or rabbit' and insert `wild mammal'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following amendments: No. 122, in page 20, line 22, leave out `or rabbit' and insert

`rabbit, goat or other wild mammal'.

No. 53, in page 20, line 27, leave out `fox, hare or rabbit' and insert `wild mammal'.

No. 63, in page 20, line 42, leave out `fox, hare or rabbit' and insert `wild mammal'.

No. 88, in page 21, line 23, leave out `rabbit or hare' and insert `wild mammal'.

No. 91, in page 21, line 28, leave out `an animal' and insert `a wild mammal'.

No. 92, in page 21, line 36, leave out `animal' and insert `wild mammal'.

No. 93, in page 21, line 40, leave out `animal' and insert `wild mammal'.

No. 95, in page 21, line 46, leave out `an animal' and insert `a wild mammal'.

No. 101, in page 22, line 5, leave out `animal's' and insert `wild mammal's'.

No. 102, in page 22, line 8, leave out `animal' and insert `wild mammal'.

John Bercow (Conservative, Buckingham)

I am particularly grateful to have such a long time in which to develop my argument before the conclusion of this morning's business—[Laughter.]

The purpose of the amendments is to change the exceptions to the general offence for which the Bill provides to cover any wild mammal, with the exception of the defence of hunting rodents. As you, Mrs. Roe, and the Committee alike will be aware, as it stands, the Bill will apply the exceptions only to the stalking or flushing out of foxes, hares and rabbits.

Marion Roe (Conservative, Broxbourne)

Order.

John Bercow (Conservative, Buckingham)

I have never been briefer.

It being twenty-five minutes past Eleven, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Two o'clock.

Standing Committee B

Schedule 3 - Hunting with dogs: prohibition

Edward O'Hara (Labour, Knowsley South)

I remind the Committee that with this we are taking the following amendments: No. 122, in page 20, line 22, leave out `or rabbit' and insert

`rabbit, goat or other wild mammal'.

No. 53, in page 20, line 27, leave out `fox, hare or rabbit' and insert `wild mammal'.

No. 63, in page 20, line 42, leave out `fox, hare or rabbit' and insert `wild mammal'.

No. 88, in page 21, line 23, leave out `rabbit or hare' and insert `wild mammal'.

No. 91, in page 21, line 28, leave out `an animal' and insert `a wild mammal'.

No. 92, in page 21, line 36, leave out `animal' and insert `wild mammal'.

No. 93, in page 21, line 40, leave out `animal' and insert `wild mammal'.

No. 95, in page 21, line 46, leave out `an animal' and insert `a wild mammal'.

No. 101, in page 22, line 5, leave out `animal's' and insert `wild mammal's'.

No. 102, in page 22, line 8, leave out `animal' and insert `wild mammal'.

John Bercow (Conservative, Buckingham)

I welcome your return to the Chair, Mr. O'Hara. As I was explaining to the Committee in the 30 seconds or so before the end of the previous sitting, the amendments would change the exceptions to the general offence for which the Bill provides to cover any wild mammal, with the exception of the defence of hunting rodents. The Bill applies those exceptions only to the stalking or flushing out of foxes, hares and rabbits, the retrieval of a rabbit or a hare that has been shot, searching for an animal that has escaped or has been released, or rescuing an animal that was or might be injured.

Paragraph 7 provides exceptions for stalking and flushing out. Amendments Nos. 52 and 53, tabled by my hon. Friend the Member for Aylesbury (Mr. Lidington), would change the exception for flushing out and stalking from a fox, hare or rabbit to any wild mammal. It seems to me, to my hon. Friend, to other hon. Friends, and perhaps to some Liberal Democrat Members, that there is no sense in animal welfare terms in restricting the species that can be flushed out or stalked. What reason could there be for distinguishing between those three creatures on the one hand and any other mammal on the other—for example, a mink or a deer? Why, therefore, does the Bill distinguish between them in terms of animal welfare or necessary pest control? Surely the arguments that apply to the categories for which allowance is already made could and should apply equally to other animals that we wish to bring within the terms of a broader and more all-encompassing exception.

It would be interesting to know whether Deadline 2000, which seems to be acquiring a certain regularity of mention in Committee, has any documentary evidence to show that a mink, for example, will suffer unnecessarily from flushing out or stalking actions, whereas the fox will not. It is difficult to know on what basis Deadline 2000 has reached what seems on the face of it—although I am happy to await further and better particulars—an arbitrary distinction.

As the Bill is drafted, the provisions on stalking and flushing would seriously hinder pest control. Land managers need to have at their disposal, and be able to exercise, the maximum possible means of control. That has been a recurrent theme in the Committee's discussions, as in previous Second Reading debates. Despite their best endeavours, Government Members have not been able to invoke support for their point of view on this aspect from any of the main representative organisations. That is because those organisations favour maximum flexibility for their members and recognise the Conservative Opposition as their robust ally in that quest.

Land managers need the maximum means of control. The Bill already recognises that stalking and flushing out are acceptable and necessary practices in species management, so it is not as though Government Members have an overriding intellectual or moral objection. We do not know for certain, but some of them may have such an objection, particularly Back Benchers, who hold a variety of extreme, bizarre, largely indefensible and frequently incoherent opinions on the subject. In fairness, we have not heard such comment from Ministers on the Government Front Bench—[Interruption.] The hon. Member for Forest of Dean (Mrs. Organ) is laughing. I shall be interested to hear whether she has any views on the subject and wishes to defend them. It is good of her to find time to be with us in Committee, in view of the fact—

Gordon Prentice (Labour, Pendle)

Get on with it.

John Bercow (Conservative, Buckingham)

The hon. Gentleman says ``Get on with it''. I shall get on with it when I am ready and not before—

Edward O'Hara (Labour, Knowsley South)

Order. The hon. Gentleman has made his point. He can now return to the matter before us.

John Bercow (Conservative, Buckingham)

I am making the important point—you will understand its importance, Mr. O'Hara—that the Government do not object in principle to stalking or flushing out. I am glad that they do not do so. It is essential that we do not have a navel-gazing or inward-looking discussion but recognise the opinions of those outside, many of whom share the view of the representative organisations and Her Majesty's official Opposition. I refer, for example, to Mr. Mark Harper, an especially assiduous and admirable prospective Conservative parliamentary candidate for the Forest of Dean constituency, which I mention entirely coincidentally in developing the argument—

Edward O'Hara (Labour, Knowsley South)

Order. I am being extremely generous with the hon. Gentleman, who I am sure will now return to the amendments.

John Bercow (Conservative, Buckingham)

I am very grateful, Mr. O'Hara. Your natural kindliness, tinged with a desire occasionally to exercise your authority, is respected by Members on both sides of the Committee, not least by me.

The amendment would provide greater flexibility in flushing or stalking mink and deer towards guns. The Bill does not allow the flushing of deer from cover, only that of fox, hare and rabbits. That will restrict methods of culling deer in England and Wales.

Again on the subject of representative organisations, about which Labour hon. Members are understandably sensitive, seeing that those organisations agree with us and not with them, it is important to understand what they say. I shall be sparing in invoking them, because we want to make steady progress, but I cannot miss out the opinion of the British Association for Shooting and Conservation—and the right hon. Member for Cardiff, South and Penarth (Mr. Michael) would not expect me to do so. That highly representative organisation is deeply versed in the countryside and has great experience of such matters. It should therefore be listened to, if not always with agreement by all members of the Committee, at any rate with the respect that it deserves. What does it say? It says:

``where the deer population—particularly muntjac and fallow—has increased excessively in areas of woodland which are impenetrable to humans, dogs are used steadily to move the deer towards waiting, static guns in order to be shot.''

That makes the BASC's position clear. Typically, as we know, terriers or spaniels are used for the purpose.

What, too, of the opinions of the British Deer Society? In its submission to the Burns inquiry, it noted:

``the use of dogs to flush deer from dense woodland is becoming increasingly common in all areas of the UK...there is certainly'',

it emphasises,

``evidence to suggest that proper and effective control of deer in newly established and replanted forests can never been achieved humanely without using dogs to flush deer and find wounded deer. The consequence'',

it goes on to say—and members of the Committee should heed this salutary advice—

``of ineffective control of deer in our expanding woodlands will be greatly increased damage to the tree crop.''

That ought to be of concern to those on the Government Benches who are—or who pose as—conservationists or environmentalists. I see that the hon. Member for Pendle (Mr. Prentice) is nodding at that point—[Interruption.] If he wishes to intervene, I shall be more than happy to give way to him. No—he is reading constituency correspondence. Let him carry on if that is what he prefers.

Edward O'Hara (Labour, Knowsley South)

Order. There is no evidence that the hon. Member for Pendle is reading constituency correspondence.

John Bercow (Conservative, Buckingham)

I stand corrected. I confess that I cannot be certain what he is reading, so I accept your admonition in the spirit in which it was administered, Mr. O'Hara. Suffice it to say that the hon. Gentleman was attempting to read something.

The consequence of ineffective deer control in our woodlands would be greatly increased damage to the tree crop. That should not be a matter of hilarity or of indifference to any member of the Committee. The BDS goes on to say:

``Deer will also maraud''

—it uses that word advisedly—

``onto nearby farmland.''

Conversely, the Bill allows the use of dogs to track injured animals, thereby allowing dogs to be used to locate deer that were not shot dead. Where is the distinction—I put this to the Committee seek its response—in welfare terms, between flushing out a deer towards a gun and tracking one that has been shot? Why is the one considered ethical and the other unethical? That is not clear to me.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The situation is worse than that. I have just received a letter from the Minister, which says:

``I think the Bill makes it clear that hunting does not necessarily involve killing.''

It goes on to say:

``in many cases the outcome of hunting undertaken for these purposes will not be the death of the quarry.''

If that is so, does the hon. Gentleman agree that we are beginning to see some confusion over what flushing out with a dog entails? To an onlooker, there would be no difference in appearance between a dog flushing out a fox towards guns and a dog chasing a fox with the intention of killing it.

John Bercow (Conservative, Buckingham)

I do not see any meaningful distinction. To that extent, not for the first time, the hon. Gentleman and I are in agreement. He made the point that the situation is worse than that which I described. I know that I tend to understate the case—it is an abiding failing of mine—and I am sorry if I did not make the point with the force and vigour that he is entitled to expect. Nevertheless, the advantage in that arrangement is that he makes me seem—as, of course, I am—very moderate.

It should also be pointed out that, arguably, hares do not rest in cover. Therefore, the Bill is inadequate in allowing them only to be flushed from cover. Several of my constituents who are members of one or other of the various hunts in my patch made that point in correspondence.

We have discussed ``Archbold'' a great deal, but I want to refer to the third edition of the ``Handbook of British Mammals'', which is edited by those well known and celebrated figures G.B. Corbet and S. Harris. Hon. Members will almost certainly have copies of the third edition, which was published in 1991. It emphasises:

``hares are most abundant in arable areas where cereal growing pre-dominates.''

How do the Government define cover? I do not know whether the Parliamentary Secretary would care to provide a definition—[Interruption.]

Edward O'Hara (Labour, Knowsley South)

Order. We extensively debated the definition of cover and flushing when I last chaired the Committee. The burden of the amendment is the categorisation, but not the specification, of ``mammals'', which is the generic term, that may be flushed. The hon. Gentleman is in danger of returning to a previous debate.

John Bercow (Conservative, Buckingham)

There was nothing remotely sloppy about my point, despite the rather silly sedentary intervention from the hon. Member for Pendle.

Edward O'Hara (Labour, Knowsley South)

Order. I was so preoccupied by my pontification that I did not notice the Division in the House.

Sitting suspended for a Division in the House.

On resuming--

Edward O'Hara (Labour, Knowsley South)

Before the Division, the hon. Member for Buckingham (Mr. Bercow) was advising us not about flushing and stalking, but about categories of mammals.

John Bercow (Conservative, Buckingham)

Categories of mammals, as you poignantly observe, Mr. O'Hara--

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

On a point of order, Mr. O'Hara, I did not hear what you said and wonder whether you would be kind enough to repeat it.

Edward O'Hara (Labour, Knowsley South)

I was repeating what I said prior to the suspension for the Division. The debate on definitions of stalking and flushing is over and the subject of the amendment before us is whether to specify particular mammals--fox, hare, rabbit--or to use the generic term ``wild mammal''.

John Bercow (Conservative, Buckingham)

I am very grateful to you, Mr. O'Hara. It is a particular pleasure to address this packed Standing Committee.

As you rightly specify, Mr. O'Hara, we are not here to discuss definitions of stalking or flushing. However, you will recall--you were in the Chair at the time--that we had a helpful exchange last week on the difference between referring to and dilating on something. I suggested during a point of order that it would be exceptionally difficult, if not impossible, for my hon. Friend the Member for Gainsborough (Mr. Leigh) properly to develop his argument if he were unable to refer to relevant terms.

Edward O'Hara (Labour, Knowsley South)

The hon. Gentleman makes a fair point and of course I should judge whether a reference was mere reference or excessive dilation.

John Bercow (Conservative, Buckingham)

I am grateful, Mr. O'Hara. I do not want to discuss the definitions of flushing or stalking. Although your autonomy on the particulars is absolute, I was merely seeking your assent to the general proposition that, in order to explain why the exception should apply more broadly and incorporate both mink and deer, as I am suggesting, a modest and brief reference to the activities of flushing and stalking and their relevance to deer and mink is not only desirable but essential for comprehensibility. I am grateful for your helpful nod of the head.

Hares and rabbits are frequently flushed in the open, typically across arable fields, towards guns, but under the Bill that practice will become illegal and those who take part in it, not least beaters, will be liable to a fine of £5,000. Likewise, the exemption on flushing and stalking does not extend to mink. The Burns report noted that mink are predators—we have been consistently and informatively advised on that by the hon. Member for Newcastle-under-Lyme (Mrs. Golding). They attack poultry, gamebirds, fish, wild birds and wild animals. The Wildlife Trust has noted:

``There are very good conservation reasons for controlling mink.''

I have not discussed this subject with the Parliamentary Secretary; still less can it be said that I have dilated on it in her presence. However, I assume that she agrees with the proposition that there is a case—indeed, a compelling one—for controlling mink. Even members of the International Fund for Animal Welfare—those friends of the Labour party whom we know and regularly cite—have had something interesting to say on the subject. Their submission to the Burns inquiry noted that

``mink control may be required in specific areas''.

That really is progress. Notwithstanding its general ideological purity in respect of such matters, IFAW—the authentic representative of political correctness in the field of animal welfare—has acknowledged that the practicalities of the countryside might require mink control. Of course, I am making the point in an understated way.

Before being shot, mink are flushed from cover on moors by gamekeepers with dogs. What will happen if, during the stalking and flushing of foxes, hares or rabbits, another wild mammal—you rightly directed me to the subject of mammals, rather than the specific activities of flushing and stalking, Mr. O'Hara—is inadvertently disturbed? After all, it is a natural instinct for dogs to hunt animals, as has been pointed out in many previous debates. One need only watch a pet dog chasing squirrels in the park to see that fact clearly.

If the amendments were accepted, an innocent farmer going about the business of legitimate species management would be protected from prosecution on the ground of the natural reaction of his dog to, for example, a deer hiding in cover. It would be extraordinarily unfair and perverse to hold a farmer responsible for an activity that he could not reasonably be expected to prevent, particularly in circumstances where that activity is likely to take place.

With those brief—perhaps too brief—remarks—

John Maples (Conservative, Stratford-on-Avon)

Hear, hear.

John Bercow (Conservative, Buckingham)

I am receiving some encouragement from my hon. Friend. I can only imagine that he is itching to contribute to the debate. I know that he will take us through matters in proper detail and in his customarily sophisticated fashion.

Amendment No. 88 would allow dogs to be used to retrieve any wild mammal—not merely hares and rabbits—that has been shot. Paragraph 9, which provides for the retrieval of shot game, would be laughable if the matter were not so serious. Given that paragraph 11 provides for the use of dogs to search for any seriously injured animal, why does paragraph 9 refer to the retrieval of only a rabbit or a hare, and not a mink, a fox or a weasel? In such circumstances, we should surely be in favour of retrieving weasels whenever the opportunity arises. What is the reasoning on animal welfare grounds for that distinction?

I am very much in the dark on the point. I am genuinely awaiting, and thirsting, for enlightenment. If the Parliamentary Secretary can provide some rationale for what otherwise seems an arbitrary and intellectually indefensible distinction, I should be a happy man. If she can show that our fears are misplaced, that would be a good thing—but I think it unlikely.

Paragraph 9 provides that it is a defence for a person charged with hunting a wild mammal with a dog to prove that he was using the dog to retrieve a rabbit or a hare. Again, there is a problem. A requirement seems to be imposed on the person charged to prove one thing, but we would have thought, and English law would suggest, that the prosecuting authorities should be obliged to prove the other. That is disturbing.

Leaving that aside for a moment, I emphasise that for the defendant to have been accused of the offence, the dog must have retrieved the rabbit or hare while it was still alive. Paragraph 9 does not require—as paragraph 10, for example, does—that the animal be recaptured or shot dead in order for the offence to apply. The paragraph therefore implicitly allows for the rabbit or hare to be killed by the dog. The Government clearly recognise the role that dogs play in the retrieval of shot game, and are content for the dog to kill the animal if it is wounded rather than shot dead.

Two points arise from that interpretation of the paragraph. First, the welfare parameters that it sets make it acceptable for a dog to kill a rabbit or a hare in certain circumstances. Why, then, cannot that method of killing apply in other circumstances? Secondly, if it is acceptable for a rabbit or a hare to be killed by a dog, having been wounded by a gun, why cannot other mammals be retrieved and killed in that way? How will the Government justify to farmers and gamekeepers the fact that they may not allow their dog to retrieve a shot fox, weasel or mink, but must walk—or, as is more likely in the countryside, climb over—frequently difficult and hazardous terrain to collect and dispatch the animal themselves? That apparently rejects the straightforward, commonsensical and manageable option in pursuit of the difficult, not obviously sensible and much less desirable option, which will often be impracticable.

Amendments Nos. 91 to 93, 95, 101 and 102 would replace the term ``animal'' with ``wild mammal''. As drafted, the exception for recapturing or rescuing animals applies in respect of ``searching'' for animals. However, as the primary offence relates to hunting wild mammals, it makes sense for the exception to deploy the same terminology. All that we are requesting is symmetry between the Government's own description of the Bill and the terms that are used in the exceptions that currently apply and those which we would prefer to add. The amendments would narrow the definition of animals that may be searched for by dogs to be recaptured or rescued in the case of serious injury, restricting the practice to wild mammals. They underline the absurdity of the Bill's drafting, which takes a pick-and-mix approach to the circumstances in which dogs can be used, with no identifiable welfare justification.

So far, it has been interesting to note that members of the Committee have not felt inclined to dispute the terms of the amendments—albeit that we are in the immediate after-lunch period, and they may not have got going yet. I am of course happy to apply an exemption from that statement to the hon. Member for Newcastle-under-Lyme, who is surely champing at the bit and will have much to offer. She is right to get excited about mink; she has every reason to do so, and is the greatest authority on the subject in our House. She need not think for a moment that I shall try to prevent her from addressing the Committee. Indeed, I am looking forward with eager anticipation, bated breath and beads of sweat on my brow to hear precisely what she has to say for our edification.

I imagine that other hon. Members will want to contribute to the debate, too. However, it is interesting that, so far, Government Back Benchers have not felt inclined to dispute our central case that the provisions are poorly drafted and that, intellectually, the distinctions do not hold water.

Edward O'Hara (Labour, Knowsley South)

Order. My understanding is that all members of the Committee are here freely to vote freely and are not here as members of the Government or the Opposition.

John Bercow (Conservative, Buckingham)

That is a welcome statement, Mr. O'Hara. I did not think that I was suggesting otherwise; although, perhaps, on the strength of precedent and the reality of the way in which these Committees have tended to operate, I could have been forgiven for doing so.

Edward O'Hara (Labour, Knowsley South)

Order. You are forgiven.

John Bercow (Conservative, Buckingham)

I am forgiven.

Mr. Gordon Prentice indicated dissent.

John Bercow (Conservative, Buckingham)

The hon. Member for Pendle indicates that I am not. I always listen with interest to what he has to say, but on the whole I am more interested in what you, Mr. O'Hara, decide, and you have muttered that I am—

Edward O'Hara (Labour, Knowsley South)

Order. You are forgiven this once.

John Bercow (Conservative, Buckingham)

I am grateful, Mr. O'Hara. In a sense your decision means that I have been let out on a tag.

Keith Simpson (Conservative, Mid Norfolk)

Two strikes and my hon. Friend is out.

John Bercow (Conservative, Buckingham)

I have had only one strike, so I am not yet out. I do not wish to tempt fate. I do wish to hear the hon. Member for Newcastle-under-Lyme and the contributions of other hon. Members, but we all want to know what the Government's justification is for their position. If they have none, will the Parliamentary Secretary—with the good grace that we have come to expect from her—acknowledge that we have a sound argument and agree that the Government should reconsider their position?

Llin Golding (Labour, Newcastle-under-Lyme)

I return to the subject of mink. If a gamekeeper walks along with his dog, flushing out rabbits, it is fine; if he suddenly flushes out a mink, which darts up a tree and sits there looking down at him, under paragraph (1)(a) he will not be able to do anything about it. He might know that a family of water voles lives close by; they are a protected species, but are declining in number because of the mink's actions. However, he would not be able to shoot the mink.

The gamekeeper would also be caught under paragraph (3)(a), which says that, even if he were allowed to shoot the mink, which he is not, he could do so only

``for the purpose of protecting livestock, fowl (including wild fowl), game birds or crops''.

The water vole does not come under any of those species. Why should the gamekeeper be prohibited from shooting the mink to protect an endangered species?

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

That is a good point, and I look forward to the Parliamentary Secretary's answer.

I want to refer to amendment No. 122 and to goats, which are other wild mammals. The amendment echoes the general point about wild mammals, but makes a specific reference to goats. Its significance has been greatly sharpened by the letter that the Parliamentary Secretary helpfully distributed to me and other members of the Committee at the start of the sitting. She has confirmed the interpretation of the Bill that I had formed and put to her. The letter says:

``I think the Bill makes it clear that hunting does not necessarily involve killing.''

Indeed, she deploys the same argument that I deployed to her. She goes on:

``Two of the exceptions from the primary offence of hunting are for the purposes of recapturing animals and rescuing animals and it must be apparent that in many cases the outcome of hunting undertaken for these purposes will not be the death of the quarry.''

I tabled the amendment to find a way of protecting somebody who was properly and innocently tracking or stalking a wild goat for the purposes of wildlife conservation from the charge of hunting a wild mammal with a dog.

The amendment is not ideal because it brings into play other features of the exceptions in this part of the schedule, including the requirement to kill the animal when it has been flushed out. Further amendments would be required to use this route to achieve my objective. It has become clear during the proceedings of the Bill, as the Parliamentary Secretary has specifically confirmed, that a distinction is not drawn between hunting and tracking or stalking. Tracking or stalking is hunting, unless the circumstances are covered by one of the exceptions that I am trying to augment. That was appreciated neither by the public nor by hon. Members when they voted in earlier proceedings. Perhaps the Parliamentary Secretary can advise me whether the deer legislation, which somehow exempts the stalking of deer from the general prohibition in the Bill, relates to that point.

Those wild mammals, including goats, which are not covered by deer legislation—there is a corpus of deer legislation—appear to be subject to a general prohibition. Somebody who uses a dog to locate, find, count, check on an animal or, for that matter, to stalk it for the purposes of shooting it with a rifle—which presumes that it is a species that that person is authorised to shoot—will be covered by the schedule because of the use of the dog. That became clear only when I examined both the Bill and the information kindly given to me by the Parliamentary Secretary. I suspect that that also became clear to Ministers and officials only during the course of proceedings. Nevertheless, we must sort it out or we shall prohibit activities ranging from wildlife conservation to stalking as a sport. Once again, the Bill threatens unintentionally to ban a range of activities.

One route would be to agree amendment No. 122 and subsequent amendments that would reduce the number of conditions that must apply. For example, an appointment has been advertised for a warden for the Cheviot wild goats that I mentioned earlier. There have been 200 applicants for the post, despite a salary of £10,000 to £12,000 a year. The appointment is in an extremely remote place and the warden must provide his own dog to locate and keep an eye on the goats. I have only seen the goats twice because their habits are so secretive; they move around the hills in the area close to the border.

Incidentally, one of the warden's duties is to prevent the goats straying across the border into Scotland. In some cases, crossing the border from my constituency involves moving south, which is confusing, but that is the way the border runs. There is a fence along much of the border, but the goats can get through it, which means that they will be in an area that the warden does not cover. How will the warden do his job? Of course, he will use a dog because it will assist in locating the goats. However, he might be subject to a malicious prosecution on the basis that he is hunting a wild mammal that is not in one of the exempted categories with a dog. That would place him in a difficult position, so we must carefully consider the question of wild goats.

I echoed the requirement to extend the exemption to wild mammals generally, which is something that appears in the other amendments in the group, because we do not know what will come up next. Several examples, such as stoats, weasels, ferrets and mink, have been quoted today, but the Committee may have overlooked a wild mammal that someone will have reason to stalk with a dog. Perhaps before the proceedings are over in this House or the other place, if the Bill ever gets there, we shall receive letters from someone whose legitimate activities involve them in stalking another wild mammal—whatever it might be—not with the intention of killing. Unless we make a list of all the wild mammals known to be resident in England and Wales, it would be better to express the exemption in general terms.

Those problems are quite serious and I hope that the Parliamentary Secretary will give us some answers. The solution to some of the problems may be to create a general exemption for stalking or tracking that is not intended to bring about the killing of the mammal concerned. If that is not included, we will have to use amendments such as this. If it is included, the Government will have to tell us how they intend procedurally to go about the matter. Are they prepared to table an amendment later in our proceedings in Committee—on Tuesday for example? That might be difficult because of the way in which the schedule is structured. Will they table an amendment on Report? If we do not solve the problem, another large group of law-abiding people will be criminalized when that was not understood to be the intention of the Bill.

Edward Leigh (Conservative, Gainsborough)

I am looking forward to the Parliamentary Secretary's speech in reply to the amendments because I am genuinely at a loss to understand why the Bill has been framed as it has. After all, one would expect this part of the Bill to be in tune with the earlier parts, and we all know that in paragraph 1 there is a clear prohibition:

``A person commits an offence if he hunts a wild mammal with a dog.''

It does not say there that a person commits an offence if he hunts a hare, a fox or a rabbit with a dog. It uses the expression ``wild mammal''. In other words, it is very comprehensive. Presumably the framers of the Bill felt that to limit it to fox, hare or rabbit was not right. They were obviously worried that, for instance, mink hunts would continue. If they framed it so widely in paragraph 1, why in the exceptions in paragraph 7 do they limit it to fox, hare or rabbit? I do not see the logic of that, unless they are trying to have their cake and eat it. It would be unfair to have a prohibition in one sense, where the Bill refers to wild mammals in general, but limiting exceptions to fox, hare or rabbit. There must be some logic and the Parliamentary Secretary must deal with that.

The excellent points made by my hon. Friend the Member for Buckingham and the right hon. Member for Berwick-upon-Tweed (Mr. Beith) have created a powerful argument. Why do the framers of the schedule not recognise that it would be a defence for a person charged with an offence under paragraph 1 to prove that he was stalking not only fox, hare or rabbit, but mink and deer? What is it about mink and deer? Apparently they are such special species that they are excluded from these exceptions. Is there some evidence that is available to Deadline 2000 that suggests that mink and deer, which are stalked and then shot, suffer more than foxes, hares or rabbits? Explanation there is none and we do not have a spokesman here for Deadline 2000. Will the Parliamentary Secretary please tell us the answer? I would have thought that anyone concerned with the control of mink and deer to manage the countryside—as they would have to be—would be extremely concerned about this part of the Bill and would hope that it could be amended.

I must confess that, owing to the nature of the countryside that I represent, I am not a great expert on deer or mink. As my hon. Friend the Member for Buckingham said—and as we know from our own common sense—we need not rely on the British Association for Shooting and Conservation and the British Deer Society to tell us that deer sometimes take shelter in heavy woodland. We can work that out for ourselves. It is sometimes sensible to use dogs to move deer into more open countryside where they can be shot. They cannot be shot in woodland.

I presume that the Government will not accept the amendment because none of our amendments has been accepted so far. The Parliamentary Secretary is shrugging her shoulders. If the amendment is not accepted--I live in hope that on this occasion she will accept that it has some merit--those who try to control deer in that way will not be allowed to do so. I am at a complete loss as to why the provision is drafted in this way.

John Bercow (Conservative, Buckingham)

My hon. Friend is right to point out that, on the basis of common sense and personal observation of the countryside, one can testify that the activities to which he is alluding take place. One does not require reference to any representative organisation to prove the point. Does my hon. Friend accept that it is revealing that the BASC and BDS insist that they need maximum flexibility and discretion for the purposes of control? That point has not been successfully countered by Labour Members.

Edward Leigh (Conservative, Gainsborough)

As I say, I live in hope. I know that hon. Members on the other side of the argument think that our arguments are not very strong, but on this occasion I hope that they will accept that we have a point. I can only assume that the matter was an oversight in the Bill.

Deer cause a lot of damage to trees. Presumably, those who want a balanced countryside realise that, sadly, deer must be humanely culled, so the exception makes no sense. If the Bill is not amended, will it be illegal to use dogs to trap an injured deer? That would be absurd. It would be inhumane to produce a Bill that prevents a wounded deer from being tracked and then dispatched humanely.

I am not a great expert on deer or mink, but I represent Lincolnshire, which is one of the foremost arable areas of the country. You will allow me, Mr. O'Hara, to make a brief reference to the fact that hares shelter in large fields. Many people in areas such as Lincolnshire and East Anglia are concerned that while their colleagues in more wooded countryside in the west of the country will be able to stalk a fox, hare or rabbit because they can be flushed out of cover, they will be unable to do so in Lincolnshire because there is far less cover and rabbits and hares do not shelter in cover. Apart from the stipulation that only certain mammals are covered by the exception, why is the question of cover also included?

My final point concerns paragraph 9 and amendment No. 88. Paragraph 9 states:

``It is a defence for a person charged with an offence under paragraph 1 to prove that the conduct to which the charge relates consisted of retrieving a rabbit or hare which had been shot.''

Presumably, therefore, it will be acceptable for one's dog to retrieve the rabbit or hare and, in retrieving it, to kill it. Unlike paragraph 10, paragraph 9 does not require that the animal be recaptured or shot dead. Therefore, the paragraph implicitly allows for the rabbit or hare to be killed. The Government clearly recognise the role that dogs play in retrieving shot rabbits and hares.

Two points arise from that. First, given that the welfare parameters make it acceptable for a dog to kill a rabbit or hare in certain circumstances, why cannot that method of killing apply in other circumstances? Secondly, if it is acceptable for a rabbit or hare that has been wounded by a gun to be killed by a dog, why cannot other mammals be retrieved or killed in that way? What is the Government's justification for telling a farmer or gamekeeper that he cannot allow his dog to retrieve a shot fox, weasel or mink, and that he will instead have to walk or climb over difficult terrain to collect and dispatch the animal himself?

The schedule is shot through with inconsistency and makes no sense. There is no consistency in respect of different species of wild mammals. There is no consistency in terms of the treatment of mink and deer, and foxes and rabbits. Nor, as far as I can tell, is there consistency in respect of the retrieval and dispatching of animals. For those reasons, I hope that the Parliamentary Secretary will agree that, on this occasion, we have a serious point.

John Maples (Conservative, Stratford-on-Avon)

Does my hon. Friend agree that paragraph 9 demonstrates an admission on the part of the Bill's drafters that shooting a wild animal could be a far crueller method of pest control than letting a dog kill it? The paragraph seems to acknowledge that the animal might have been shot and wounded, and that it is all right for a dog to chase it so that it can halt it or bring it back to, say, the gamekeeper, who can then kill it. In doing so, it is conceded that it would have been far more humane to allow the dog to kill it in the first place. It seems an extraordinary and arbitrary distinction to argue that the dog may chase the rabbit or hare so that someone can shoot it, and that the dog may chase it after it has been shot, but that the dog may not kill it in the meantime, given that the latter method might prove much more humane.

Edward Leigh (Conservative, Gainsborough)

I agree with my hon. Friend. I genuinely hope that the Parliamentary Secretary can help me, because I am finding it very difficult to understand the thinking behind paragraph 9. As drafted, it makes no sense. It seems to state that a dog may retrieve a rabbit or hare and then kill it. If that is humane, why is it not humane for the dog to kill the rabbit or hare in the first place?

Edward O'Hara (Labour, Knowsley South)

Order. I feel that I must rule on this matter. We have had this debate before in the context of whether it is more humane for a mammal to be hunted, or taken in the air by a hawk and dropped to the ground. This issue gives rise to a similar debate, but one that is not the subject of the amendment. We are not supposed to be discussing whether it is more or less humane for an animal to be dispatched in a particular way. After all, the Bill is concerned with hunting, and the amendment deals with the question of whether specified mammals or all mammals should be covered by the provision.

Edward Leigh (Conservative, Gainsborough)

You are quite right, Mr. O'Hara, but this is an important debate. Amendment No. 88 is a good amendment, and I cannot foresee the arguments that the Parliamentary Secretary will use against it; I may be doing her a disservice by assuming that she will. The amendment would simply allow dogs to retrieve any wild mammal that has been shot, not just hares and rabbits. We do not even need to raise the subsidiary issue to which my hon. Friend the Member for Stratford-on-Avon (Mr. Maples) referred. The Home Office Minister has already been very fair about the question of rabbits. I now hope that the Parliamentary Secretary will be fair about this issue, and send the message that the Bill will not put at risk farmers in England and Wales whose dogs stalk wild mammals other than foxes, hares or rabbits in the course of normal countryside management.

David Lidington (Conservative, Aylesbury)

I want to touch briefly on three points that were raised by several members of the Committee, and press the Minister on each.

The first concerns deer. The debate about hunting deer with hounds has centred on what happens on Exmoor and in the Quantocks, where organised packs of stag hounds pursue red deer as the quarry species. Burns focused on deer hunting in that context in his report and it has been considered in scientific studies by Bateson and others.

However, there are other species of deer in this country, which live in different habitats and are not pursued by organised packs of hounds. If my reading of the Bill is correct, any use of dogs to flush out those deer species in order to shoot them will be unlawful, with one exception. In answer to my hon. Friend the Member for Gainsborough, it would indeed be possible for somebody to use a dog to help to track down a wounded deer in order to put it out of its misery. However, the use of a dog to track down or to flush out a roe deer or muntjac from woodland in order subsequently to shoot it would be illegal because, unless the amendments are accepted, such activities will not fall within the various exceptions permitted under part II.

This is not merely a theoretical matter. My hon. Friend the Member for Buckingham referred to the views of two organisations that are involved in the management and conservation of deer stocks. I add to their professional expertise an anecdote from my part of the world. A few years ago, I visited a small nature reserve that was then in my constituency, and is now in the constituency of my hon. Friend—

John Bercow (Conservative, Buckingham)

Is my hon. Friend referring to that in or adjacent to St. James' Way, Bierton?

David Lidington (Conservative, Aylesbury)

I was not referring to St. James' Way, Bierton, but to a little nature reserve just outside Aston Clinton.

The reserve had been created to conserve several species of animals and plants, and was noted as the refuge of a particularly rare species of butterfly. One of the problems faced by the managers of the reserve was the presence of muntjac, which exist in large numbers in the Chiltern hills. They came into the woodland and devoured the shoots of young trees and plants that grew up to provide a habitat for the rare butterfly and for other insect species that were supposed to be conserved there. The managers said that muntjac were a real pest. I ventured to ask them what muntjac tasted like, and was hastily told that one was not supposed to ask that in public, but the flavour was extremely pleasant.How are the populations of woodland-dwelling deer species to be managed and controlled, where they are pests, if the use of dogs is forbidden?

Edward Leigh (Conservative, Gainsborough)

With regard to my hon. Friend's reference to me, I apologise to the Committee for having misunderstood the Bill. I am trying my best to understand it, but I acknowledge that I make mistakes. My hon. Friend was right. Paragraph 11 states:

``It is a defence for a person charged with an offence under paragraph 1 to prove that—

(a) the conduct to which the charge relates consisted of searching for an animal which the accused believed was or might be seriously injured''.

However, I still do not understand why paragraph 11 draws the distinction so widely in referring to ``an animal'', given that paragraph 7 is so narrowly drawn. Can my hon. Friend explain that?

David Lidington (Conservative, Aylesbury)

My hon. Friend is right. His question raises two issues of detail. The first is the exclusion from paragraph 7 of species of wild mammals other than foxes, hares and rabbits, and some of the amendments address that issue. The second relates to the use of the term ``animal'' in paragraphs 10 and 11 of the schedule rather than the term ``wild mammal''. That is the point to which my hon. Friend the Member for Buckingham alluded, and I want to press the Parliamentary Secretary a little further. The draftsman may simply have nodded and what is meant is wild mammal, in which case no doubt the Parliamentary Secretary will be able to accept the amendments, so that we can be certain what the Bill means. But if the term ``animal'' is intended, the provision goes far wider than wild mammals, and presumably the draftsmen's intention was that people could use dogs to recapture or rescue not merely wild mammals but domestic mammals and animals other than mammals.

I can just about imagine circumstances in which such a power would be necessary. Near Chequers in my constituency there is an ostrich farm. I suppose that the term ``animals'' might have been put into the Bill to allow people to use dogs to recapture or rescue escaped or injured ostriches. But unless one seeks a far-fetched example of that nature, I cannot see why there is a difference between the terminology in paragraphs 10 and 11 and the term ``wild mammals'', which is used throughout the schedule, as well as in the short title and the key paragraph of the schedule, paragraph 1, which defines the offence.

Edward Leigh (Conservative, Gainsborough)

The draftsmen had to use the term ``animal'', because it would be absurd if one could not use dogs to recapture an animal that had escaped from captivity or to rescue an animal that had been injured. However, surely my hon. Friend is right. If paragraph 1 refers only to wild mammals, why is it necessary? If a lion had escaped from a zoo, there is nothing in paragraph 1 that would stop someone using their dogs to chase the lion, is there? [Hon. Members: ``There is.''] There is? My hon. Friend will now help me.

Edward O'Hara (Labour, Knowsley South)

Order. Any interventions should be through the Chair.

David Lidington (Conservative, Aylesbury)

My hon. Friend is slightly mistaken in his reading of paragraph 1. As I read it, it would indeed make it unlawful to use dogs to pursue an escaped lion or tiger, unless it was being done under the exception provided for in paragraph 10 or paragraph 11. Using dogs to pursue an escaped tiger or other animal could be covered by using the term wild mammal, so I genuinely do not understand the need for the different terms.

Jane Kennedy (Labour, Liverpool, Wavertree)

I was intrigued to know in what circumstances the hon. Gentleman would imagine that a dog would not be trying to retrieve or recapture a wild tiger or lion.

David Lidington (Conservative, Aylesbury)

I am ready to respond, and happy to give the Parliamentary Secretary some ideas.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

If the lion or tiger had gone into a cave or other underground place, it would be an offence to use a dog to seek it out.

David Lidington (Conservative, Aylesbury)

The right hon. Gentleman is correct. That illustrates again the absurdity of so many details in the Bill, which we are only gradually teasing out.

I want to move on to my final point. My first two points related to detail and terminology, but the third is central to the group of amendments and the entire Bill. The right hon. Member for Berwick-upon-Tweed was correct to draw the Committee's attention to the importance of the Parliamentary Secretary's letter, which was copied this afternoon to all members of the Committee. If hunting, and therefore the scope of the offence, is to be defined more broadly than simply pursuing and killing a quarry, many of the fears that Opposition Members and the hon. Member for Newcastle-under-Lyme have expressed would be realised, and a Bill intended to outlaw organised packs of hounds would bring within the scope of its criminal offences the everyday activity of gamekeepers, farmers and others working in our rural areas.

I shall use one illustration to make that point. Reference was made earlier in the Committee to representations from the National Gamekeepers Organisation and its view that the use of dogs was essential for Mustelid species, especially stoats. All sides of the Committee accept that, if the Bill became law, it would be unlawful to use dogs to pursue and kill stoats or weasels. I may disagree with that, but the intention of the Bill is clear on that count. However, it has emerged during the debate that if a gamekeeper used a dog to pursue a stoat so that he could shoot it for the purposes of vermin control or to retrieve a stoat that had been shot, that would also be unlawful.

Once again we are discovering that despite assurances that Ministers have given us—in good faith, I am sure—at various stages of our debates, the words of the Bill mean that not only will organised packs of foxhounds, stag hounds and mink hounds—beagles—be affected by the Bill, but the use of dogs by gamekeepers and others for their essential business of vermin control and game management will be put at risk. The only way to avoid that is for the Government either to accept some of the amendments or, as the right hon. Member for Berwick-upon-Tweed said, to reflect further and table amendments to restructure part II of the schedule. I hope that the Parliamentary Secretary is prepared to do that.

Jane Kennedy (Labour, Liverpool, Wavertree)

There has been a great deal of discussion about something that I hope is not complicated. At first glance, the amendments appear to serve two different purposes. Like the hon. Member for Buckingham, I shall deal with the amendments in two batches, starting with amendments Nos. 52, 122, 53, 63 and 88.

The Bill allows a limited amount of hunting with dogs to take place in specific circumstances, and the exceptions are set out in part II of the schedule. Amendments No. 52, 122, 53 and 63 refer to the species to which the exceptions of stalking and flushing out apply. The schedule applies to fox, hare or rabbit, but the amendments would enable the exceptions to apply to any wild mammal.

As members of the Committee are aware, the Committee of the whole House supported Deadline 2000's policy to ban hunting with dogs, but that organisation—recognising that there may be occasions when it is necessary to flush out certain animals—has included in the schedule a number of exceptions to a ban on hunting with dogs. For example, there is an exception to allow the stalking of a fox for the purpose of protecting lambs and flushing out from cover of hares and rabbits to protect crops or for food. Widening the exception to include the stalking and flushing out of any wild mammal could greatly increase the extent of such activity that was allowed.

Among the species that could be stalked or flushed out would be deer, about which the right hon. Member for Berwick-upon-Tweed asked. The Deer Act 1991 deals with the times at which deer can be killed or taken and prohibits the use of certain weapons and articles. This Bill prohibits the use of dogs to hunt deer in exactly the circumstances mentioned by the hon. Member for Aylesbury. I think that muntjac deer are covered by the Deer Act, but I have asked for clarification on that point, since they were introduced to the British Isles after the passage of that Act.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

Will deer stalking—not deer hunting by stag or deer hounds—normally practised by a forest ranger with a dog which assists in locating the deer be prohibited following the enactment of the Bill?

Jane Kennedy (Labour, Liverpool, Wavertree)

I thought that I had answered that. The Deer Act would determine whether the use of the dog in those circumstances was lawful. There would be a defence and so long as the individual was conducting his affairs within the terms of the Deer Act, he would not be committing an offence. If that is wrong, I will come back to the right hon. Gentleman.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

Is the Parliamentary Secretary saying that the preceding Act overrides the Bill and the general prohibition contained in it? The hon. Lady may be having difficulty understanding the note that has been passed to her. She has my sympathy because this is a difficult point. We have discovered something important this afternoon; that the traditional practice of deer stalking, using a dog to assist in locating the deer, could be prohibited by the Bill, unless the hon. Lady is right that, in some mysterious way, the Deer Act confers an exception. In that case, it ought to be referred to in the Bill. If she has had an opportunity to read the note, can she now tell me one way or another?

Jane Kennedy (Labour, Liverpool, Wavertree)

I cannot do that, but I will consider again the argument advanced by the right hon. Gentleman. I may have got the matter wrong, and if so I will come back to the Committee as soon as I can with a definitive response.

Edward Leigh (Conservative, Gainsborough)

Will the Parliamentary Secretary explain the purpose of the Deer Act 1991? How will it protect the traditional sport mentioned by the right hon. Member for Berwick-upon-Tweed?

Jane Kennedy (Labour, Liverpool, Wavertree)

The hon. Gentleman knows that the Deer Act deals with the times at which deer can be killed or taken and prohibits the use of certain weapons and articles in their pursuit. I do not have a copy of it immediately to hand, but I will look at the point that has been made and seek to clarify the situation.

John Bercow (Conservative, Buckingham)

I recognise that the Parliamentary Secretary is awaiting further and better particulars. That is reasonable, but can she tell us at this stage what weapons or articles she has in mind?

Jane Kennedy (Labour, Liverpool, Wavertree)

No, I cannot. That is why I am awaiting further and better particulars.

Edward O'Hara (Labour, Knowsley South)

If I may rescue the Parliamentary Secretary, this comes under the definition of dilation on the details of the Deer Act 1991; we are debating the Hunting Bill.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

On a point of order, Mr. O'Hara. I am anxious to be helpful because I think that the Parliamentary Secretary is caught in a difficult legal area and is genuinely trying to help. I do not want to make her task more difficult. My worry is that she may have to come back to us on, say, Tuesday and tell us that the Bill has an effect far wider than she had previously thought. Were that to be the case, we would have to ask the Government to help us in seeking further time for consideration of this new and different aspect of the Bill. I am using this point of order to alert you, Mr. O'Hara, and the Parliamentary Secretary to that possibility, but we should not press her further at this stage on the point because, understandably, she wants to take advice.

Edward O'Hara (Labour, Knowsley South)

I am grateful to the right hon. Gentleman for that point of order. The terms of reference of this Committee are the Hunting Bill.

Jane Kennedy (Labour, Liverpool, Wavertree)

We were talking about species that could be stalked or flushed out if the amendments were accepted. Members of the Committee might be aware that in certain parts of the country there are wild boar. They, too, would fall within the ambit of the exception if the amendments were accepted. The same argument applies to amendment No. 88, which would widen the exception in respect of retrieving game from rabbits and hares to all wild mammals that have been shot. It is quite difficult to imagine what that might encompass. Which wild mammals other than rabbits and hares fall into the category of game and are subject to shooting? The amendment's only potential practical effect would run counter to the policy agreed by the whole House, in that it would increase the amount of lawful hunting with dogs.

The exceptions to the ban on hunting with dogs have been tightly drawn. The amendments would widen them beyond the intention of the schedule as written by Deadline 2000.

Llin Golding (Labour, Newcastle-under-Lyme)

What about the friendly neighbourhood mink? Under normal circumstances, gamekeepers are accompanied by dogs, but if they shoot a mink in such circumstances they will be liable to prosecution.

Jane Kennedy (Labour, Liverpool, Wavertree)

My hon. Friend has misunderstood, in that I have yet to draw my remarks to a conclusion. I hate to disappoint the Committee, but I have other points to make and they relate to my hon. Friend's intervention.

I invite the Committee to reflect on the amendments in the light of the decision of the Committee of the whole House. We should also consider whether a change that could allow much more hunting with dogs is in keeping with the wishes of the Committee of the whole House.

Members of the Committee who have examined carefully the remaining amendments—Nos. 91 to 93, 95, 101 and 102—might have been rather surprised, because at first sight they seem to narrow the scope of the exceptions. As the Bill is drafted, the exceptions for recapture and rescue apply to any animal. As one or two members of the Committee have pointed out, the amendments appear to refer only to wild mammals, and in doing so restrict the extent of the exceptions.

I hope that I can reassure those members of the Committee who are worried by what appears to be a sudden change of heart on the part of the hon. Member for Aylesbury that the amendments would in fact have no affect. The principal offence in paragraph 1 concerns hunting wild mammals with dogs, so the hunting of anything other than a wild mammal will remain unaffected. If a dog were used to recapture an animal such as an alligator that had escaped from a zoo, or an injured bird, no offence could possibly have been committed under this legislation, and the exception would not come into play. To put the matter starkly, the amendments serve no useful purpose.

John Maples (Conservative, Stratford-on-Avon)

The amendment is designed to draw attention to an anomaly that the Parliamentary Secretary has yet to explain. For instance, paragraph 10 makes reference to

``a defence for a person charged with an offence under paragraph 1''.

Such an offence can therefore relate only to a wild mammal, but the exemption relates to an animal. What is the reason for that distinction? I agree that the amendment tabled by my hon. Friend the Member for Aylesbury appears to narrow the scope of the provision, but in fact it does not. The offence can relate only to the hunting of a wild mammal, but the exception refers to a wider category that presumably includes birds and reptiles.

Jane Kennedy (Labour, Liverpool, Wavertree)

It will be for members of the Committee to decide which of us is right.

Several questions were asked, which I shall try to answer. [Interruption.]

Edward O'Hara (Labour, Knowsley South)

Order. There is cross-chat going on over the Parliamentary Secretary.

Jane Kennedy (Labour, Liverpool, Wavertree)

Thank you, Mr. O'Hara.

In response to the right hon. Member for Berwick-upon-Tweed, the Bill does not provide an exception for goats. A person who intentionally hunted goats would commit an offence, but a person who tends goats, and does not intend to hunt them, will not commit an offence.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

As the Parliamentary Secretary said in her letter, hunting does not have to include killing. I am talking about wild goats. The person who tends them does not see them outside his window every morning and go out to distribute food to them, but goes to seek them on the hillside; in other words, to hunt them. I am worried that his occupation will become illegal, because he has to hunt the goats with a dog in order to count them and to consider their general condition.

Jane Kennedy (Labour, Liverpool, Wavertree)

I honestly believe that the right hon. Gentleman is unnecessarily anxious—[Interruption.]

Edward O'Hara (Labour, Knowsley South)

Order. I am finding it difficult to hear the Parliamentary Secretary because of the undercurrent of chat.

Jane Kennedy (Labour, Liverpool, Wavertree)

Thank you, Mr. O'Hara.

The right hon. Gentleman is unnecessarily anxious about this definition. If the person is tending the goats—or husbanding them, to use an old phrase—he is not hunting them. That goes back to the intention of the individual. I hope that my explanation will satisfy other members of the Committee, if not the right hon. Gentleman. I am sorry if he is still unhappy with it.

My hon. Friend the Member for Newcastle-under-Lyme asked why gamekeepers should be prevented from flushing out mink to protect water voles.

Llin Golding (Labour, Newcastle-under-Lyme)

I did not say that. I referred to flushing out rabbits and accidentally flushing out mink, which is a different matter.

Jane Kennedy (Labour, Liverpool, Wavertree)

Again, that comes back to the question of intent. The schedule does not provide for flushing out mink, in accordance with the wishes of those in Deadline 2000 who drafted it. Members of the Committee must decide whether they support that.

Ian Cawsey (Labour, Brigg and Goole)

That is not only the view of Deadline 2000, but of the Environment Agency, which has said that it does not packs of dogs on riverbanks owing to the damage that they do to the habitat and to other species.

Jane Kennedy (Labour, Liverpool, Wavertree)

I am grateful to my hon. Friend for coming to my aid.

Llin Golding (Labour, Newcastle-under-Lyme)

I challenge my hon. Friend the Member for Brigg and Goole (Mr. Cawsey) on that point. In fact, the Environment Agency has no policy on hunting mink. If he can prove otherwise, I shall be surprised.

Ian Cawsey (Labour, Brigg and Goole)

I referred to a well reported statement by the Environment Agency in 1996 that is available in the House of Commons Library and other places. That may not prove the matter to my hon. Friend's satisfaction, but I can only quote fact.

Jane Kennedy (Labour, Liverpool, Wavertree)

I am sure that we are all grateful for the point that my hon. Friend has drawn to our attention.

The hon. Member for Gainsborough asked why paragraph 9 on the use of dogs for the retrieval of game is limited to rabbits and hares. Such retrieval does not necessarily involve the dog killing the shot game. In many cases, the purpose of retrieval is to bring the shot game back to the handler in a state fit for human consumption, so that it can be killed by the handler.

The hon. Member for Buckingham asked why shot mink or deer cannot be retrieved with dogs. The answer is that if the animals are seriously injured, they can be rescued using dogs under the provisions of paragraph 11.

This has been an interesting and heated debate, which has raised questions that I will undertake to answer only when I have received further advice.

Edward Leigh (Conservative, Gainsborough)

I shall try one more time. The Parliamentary Secretary says that under paragraph 1, a person will commit an offence only if he hunts a wild mammal. Therefore, he will not be guilty of an offence if he hunts something other than a wild mammal; for example, a snake or bird. My hon. Friend the Member for Stratford-on-Avon asked why, given those circumstances, paragraphs 10 and 11 are phrased in terms of recapturing animals. There is no need. Why are those paragraphs not framed in terms of a defence for a person charged with an offence under paragraph 1 to prove that the activity consisted of searching for a wild mammal? That is a simple question that the Parliamentary Secretary must answer before she finishes her speech.

Jane Kennedy (Labour, Liverpool, Wavertree)

I felt that I had answered the question. However, my answer has clearly not satisfied the hon. Gentleman, but it will be for members of the Committee to decide whether it is sufficient.

John Bercow (Conservative, Buckingham)

We acknowledge and appreciate that the Parliamentary Secretary has striven to respond to the concerns expressed by Opposition Members. However, she will be aware, not least from the number and frequency of the interventions during her response, that there is still considerable disquiet among members of the Committee about the status of the schedule. I was especially concerned, as I suspect the hon. Member for Newcastle-under-Lyme will have been, by the Parliamentary Secretary's comments in relation to mink, which I did not find satisfactory or reassuring. Although, after a while, she tried to respond, she did not reassure the hon. Member for Newcastle-under-Lyme and she did not reassure us.

Llin Golding (Labour, Newcastle-under-Lyme)

I have an Environment Agency quote from 1997 stating that it does not have an official policy on mink hunting; my hon. Friend the Member for Brigg and Goole quoted a document dated 1996. Having said that, the agency does have a policy on the protection of water voles.

John Bercow (Conservative, Buckingham)

I am exceptionally grateful to the hon. Lady. All I can say in response to that helpful intervention is that the words ``check mate'' readily spring to mind. I hope that the hon. Gentleman, whose constituency I shall have the pleasure of visiting tomorrow, will take that to heart. He quoted a document from 1996 that I felt sure he had read from cover to cover. Indeed, he assured us that copies were available in the Library. However, I know that he will happily defer to the hon. Lady's reference from 1997. [Interruption.] The hon. Gentleman is obviously sensitive on the point, so I shall indulge him.

Ian Cawsey (Labour, Brigg and Goole)

Not at all. I hope that the hon. Gentleman enjoys his visit to my constituency, which he will find is a lovely part of the country.

The Environment Agency's statement that I used earlier in the debate—which has not previously been challenged—sets out its view that mink damage riverbanks, habitats and species. The agency has never said that it has a policy one way or the other. Policy is a matter for hon. Members; the agency has given us its advice, and I hope that we shall listen.

John Bercow (Conservative, Buckingham)

The hon. Gentleman is doing his best to climb out of the hole, and I applaud him for making the attempt. However, what he said does not gainsay the remarks of the hon. Member for Newcastle-under-Lyme. The debate is becoming a particularly stimulating game of ping-pong.

Llin Golding (Labour, Newcastle-under-Lyme)

Does what my hon. Friend the Member for Brigg and Goole says mean that the Environment Agency is against fishing because people walk up and down the riverbank?

John Bercow (Conservative, Buckingham)

Uncharacteristically, the hon. Lady seeks to divert me down a path that would not be virtuous. As you will know, Mr. O'Hara, I do not normally require much temptation, but I shall resist all blandishments on this occasion. Therefore, I shall not dilate; I know that you are as fond of that word as I am, Mr. O'Hara. Although I do not want to rehearse old arguments, I have two specific concerns.

Edward O'Hara (Labour, Knowsley South)

Order. If the hon. Gentleman checks the record, he will find that he first used the word ``dilate''.

John Bercow (Conservative, Buckingham)

I am happy to accept that I was the original user, although I certainly was not the author of the word. However, we have both enjoyed using it from time to time. I think that you used the noun ``dilation'', Mr. O'Hara, if memory serves me correctly.

There are two points. The first is that the Parliamentary Secretary has said that she cannot respond to the specifics this afternoon as, in a number of respects, she needs further and better particulars. We hoped that they might be forthcoming from the intellectual highbrows and bluestockings who advise us so conscientiously, but it appears that the material will not be available today. The position may be improving, however.

Jane Kennedy (Labour, Liverpool, Wavertree)

It may be helpful if I clarify the position. I do not believe that it was the intention of the House, in passing schedule 3, to outlaw deer stalking. If that is its effect, I undertake to look at the schedule again and to reconsider it.

John Bercow (Conservative, Buckingham)

The situation becomes curiouser and curiouser, but one should be magnanimous. I am grateful for that, because we are making progress. I specially appreciate what the Parliamentary Secretary has just said. It is a good job I stood up again. If I had not done so, we might not have managed to wangle that proffered concession from her.

However, my second concern remains, and it needs to be put on the record. It may have been an infelicitous turn of phrase from the Parliamentary Secretary—if it was, it can be excused, and we shall allow her to concede and move on—but a few moments ago, in response, I think, to an intervention from the right hon. Member for Berwick-upon-Tweed, she said that if the exception were to extend to mink in the way that a number of us have suggested, that would fall foul of the wishes of Deadline 2000, whose option was now the main purport of the passage of the Bill. I found that worrying, and I hope that a number of my hon. Friends found it disturbing, because we must not let such organisations become out of balance in this debate. Deadline 2000 is a reputable organisation—it is clearly wrong-headed, but it is entitled to its point of view—but it is just a lobby group that is arguing for a certain option.

We know that this matter has been dealt with differently from other legislation. We know that the House was given three options and chose one, which forms the basis of our deliberations in the Committee. However, there is a difference between the basis of our deliberations and their final form. Just because Deadline 2000 has a certain view about mink, that is not the be-all and end-all of the matter. With the greatest respect to the Parliamentary Secretary, and I have considerable respect for her, it is not good enough to dismiss amendments from either side of the Committee simply by saying ``Ah, that wouldn't be acceptable to Deadline 2000''.

I shall be frank about it. I am starting to get into my stride and to say what I really think. I could not give a tinker's cuss what Deadline 2000 thinks. I am not remotely bothered whether passing the amendments would satisfy Deadline 2000. We as a Standing Committee have a right to look at the option and to see whether, consistent with its retention, amendments can usefully be made to the Bill to remove anomalies, prevent injustice and ensure its practicality, not necessarily its desirability.

John Maples (Conservative, Stratford-on-Avon)

My hon. Friend's point is a good one. We all understand where the schedule came from, but the Bill is now a Government Bill. When Opposition Members raise technical points on the Bill, such as why the word ``animal'' is in it rather than the term ``wild mammal'', the Parliamentary Secretary says that it has nothing to do with her; it is all to do with Deadline 2000. I do not find that acceptable and I am surprised that she does.

Does my hon. Friend think that we should to try to find a way to examine Deadline 2000 on this question? I do not know whether it is possible to reconvene the Committee as a Special Standing Committee. If this is Deadline 2000's Bill, perhaps it should answer the questions rather than the Parliamentary Secretary. We need an opportunity to find out exactly where the Bill comes from, as those concerned are an umbrella group that paid the Labour party a substantial sum of money.

Edward O'Hara (Labour, Knowsley South)

Order. That point has been made on a number of occasions. If the House had determined otherwise, the Committee might be referring to the wishes of the Countryside Alliance.

Edward Leigh (Conservative, Gainsborough)

Yes, but it is right--[Laughter.]

John Bercow (Conservative, Buckingham)

I agree. I was about to prove how fair-minded I am, but the Parliamentary Secretary is itching and champing at the bit and I cannot resist her.

Jane Kennedy (Labour, Liverpool, Wavertree)

I am grateful to the hon. Gentleman for allowing me to rebut the statement of the hon. Member for Stratford-on-Avon. Deadline 2000 does not support any political party and is a non-party political organisation. I invited Committee members to make up their own minds in the way that we have traditionally dealt with the subject as to whether they agree with the schedule as drafted.

John Bercow (Conservative, Buckingham)

We are grateful for that, I am sure, Mr. O'Hara. I simply wanted to make the point that whatever preferred option is in the lead, whether that of Deadline 2000 or the Countryside Alliance, we are in no way absolved of responsibility for maximising the benefits of the Bill and minimising its disbenefits. That would apply whatever option was chosen. Further to the comments of my hon. Friend the Member for Stratford-on-Avon, the thrust of the argument is simply stated. The Government cannot subcontract responsibility for what is now a Government Bill. It simply will not do for the Government to use Government time and to deploy their own Ministers, their own Whips, their own Back-Bench supporters--

John Maples (Conservative, Stratford-on-Avon)

And officials.

John Bercow (Conservative, Buckingham)

Yes, and those whom we are not supposed to name but whose intellectual reputation is established--

Edward O'Hara (Labour, Knowsley South)

Order. The understanding of the Chairman is that Back Benchers on both sides of the argument are present as free agents. The Government are providing a service to the Committee.

John Bercow (Conservative, Buckingham)

I am sorry, Mr. O'Hara, because I erred. I am happy to concede that I erred and, again, to accept your admonition. I keep making the mistake--I hope that my hon. Friends and the right hon. Member for Berwick-upon-Tweed will forgive me--that Government Back Benchers are in Committee to do the Government's bidding. I keep making that mistake and you are right to remind me that they have every right to say exactly what they wish. The only difficulty, and the reason why I keep forgetting that central constitutional fact, is that thus far--I am not saying that I have not made a mistake, but I am making my plea by way of mitigation--the only Government. Member who has been authentic and independent is the hon. Member for Newcastle-under-Lyme. I made the mistake because Government Back Benchers have been subservient to date--[Interruption.]

Edward O'Hara (Labour, Knowsley South)

Order. We are now far from the subject of amendment No. 52, to which I invite the hon. Member for Buckingham to return.

John Bercow (Conservative, Buckingham)

I shall return to it, but if the right hon. Member for Cardiff, South and Penarth wants to intervene, I shall give way.

Alun Michael (Labour/Co-operative, Cardiff South and Penarth)

I shall be brief. I invite the hon. Gentleman to point to hon. Members on the Opposition Benches who voted for schedule 3 on the Floor of the House. They have been excluded from the Committee, which is not the case on the Government Benches.

John Bercow (Conservative, Buckingham)

The answer is simple and the right hon. Gentleman is wrong. It is fair to answer and I can do so in one sentence. None of them expressed a desire to serve on the Standing Committee. The right hon. Gentleman may doubt that, but I know, beyond doubt, that it is true. With respect and at the risk of being trite, that has well and truly shot the right hon. Gentleman's fox.

The Government cannot subcontract responsibility for their own Bill. We have a responsibility to try to improve it. The point to which I wanted to refer, but was prevented from doing so by the flurry of interventions by Labour Members, was that made by my hon. Friend the Member for Stratford-on-Avon. Not for the first time—and not, I suspect, for the last—my hon. Friend and I were thinking about the same point at the same time. I wanted to say that there is a certain absurdity about the Government insisting on confirmation of the position in the Bill as unamended when we still have much to learn. There are all sorts of unanswered questions, but the Parliamentary Secretary is essentially saying to us, notwithstanding that, ``Wouldn't it be a good idea to withdraw the amendments and for the clauses to stand unamended?'' I do not agree.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I thought that I heard the word ``withdraw'', which prompts me to ask the hon. Gentleman not to withdraw the lead amendment before giving one or two of us the opportunity briefly to refer to what the Parliamentary Secretary has said.

John Bercow (Conservative, Buckingham)

Absolutely. I assure the right hon. Gentleman that I intended to do precisely that. Because it will give me a convenient end point for my remarks, I take this opportunity to assure him that, in the light of the unsatisfactory response that we have had so far, and the obvious lacunae in the Bill that the debate has demonstrated, my hon. Friends and I have no intention of withdrawing the amendment. It will almost certainly therefore be necessary for the amendments to be pressed to votes.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

First, I pay tribute to the Parliamentary Secretary. Having taken advice, she gave the Committee a clear response—of the kind that I have sought on a number of issues—that, in her view, when the House voted to ban hunting with dogs, it did not intend to ban deer stalking as traditionally practised. Her view up to now has been that the Bill does not have that effect, but she has said that she is prepared to look at that possibility again. That was very clear and welcome. I have become more convinced during our proceedings, and in looking at the amendments as a way out, that the Bill does have such an effect. Obviously we must all take advice on that.

We are up against a deadline—fortunately we have an extra day for debate on Tuesday—but it would be helpful if we knew in time to table amendments if necessary. The amendments would have to be starred and we would depend on your discretion, Mr. O'Hara, as to whether they could be selected for debate on Tuesday. They could be Government amendments, tabled to meet any difficulty, or those tabled by hon. Members who want to make their own suggestions or who feel that the Government's proposals either do not make the case or go too far. The Committee could have a lot to deal with on Tuesday on this serious issue. Many hon. Members on the other side of the argument would not carry with them all those who agree with them on the main issues determined in the Committee of the Whole House if they had to go back to them to say that, to their surprise, the Bill abolishes a completely different sport, to which other considerations apply.

John Bercow (Conservative, Buckingham)

Does the right hon. Gentleman agree that when the terms of programme resolution No. 3 were first devised not long ago—but prior to this disputatious exchange—the Government could not have known what a hornets' nest would be opened up? Does he therefore agree that we might need as much as another half day or full day fully to debate and resolve matters?

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I said as much on a point of order. It is not simply a matter of the time required for debate, but the time between the days of debate in which amendments may be tabled and interested groups consulted on them. That is very serious. In all my time in the House I have never had much interest in delaying tactics. I have occasionally used them for specific purposes—which I will not recount on this occasion—but I certainly have not done so during the course of our proceedings on this Bill. Every speech that I have made has been directed towards something that I felt was a problem—and this matter falls into that category. I reiterate my appreciation of the Parliamentary Secretary's clarity on what she feels is right in these circumstances. If I am right and her optimism proves unjustified, I hope that we can find a way of doing that properly.

On the goats issue, I am not satisfied with what the Parliamentary Secretary said, although I appreciate that it was said in good faith. As a matter of legal definition, the concept of husbandry of wild animals is difficult to sustain—and that was the phrase that she used. In all its uses, from the King James Bible onwards, the concept of husbandry relates to domesticated or farmed, not wild animals. She introduced her own concept of tending, which is also a little hard to square with the reality of life with animals that we usually see only at a distance and whose wild state and limited contact with man we are trying to maintain.

In trying to protect some groups of unusual wild animals, the objective is to ensure that there is little contact with humankind. In some areas of the country, goats have become so used to visiting the Forestry Commission car park and eating the contents of waste bins that they are almost domesticated, like some of the bears in Canada—although that does not stop the Canadian bears being dangerous.

In my constituency, we have the only herd of Chillingham cattle—wild cattle—in the United Kingdom. Although people go to see them, the object is not to make them in any way domesticated or the subject of normal husbandry. The management procedures used are designed to ensure that the cattle can survive in the wild. Therefore, we have a definitional problem that may require further attention.

Gordon Prentice (Labour, Pendle)

I have been following the right hon. Gentleman's remarks on wild goats. He said that the object was to count them and check on their general condition. Who does so?

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

I referred the Committee to the matter earlier. I am surprised that the hon. Gentleman did not hear it. I am surprised that he did not read the interesting piece that appeared in The Times on 2 February, which described how hundreds of people have applied for the job of counting wild goats. I recommend the job to him. As I told the Committee, the salary is £10,000 a year and the applicant must provide his own dog and live in a remote part of Northumberland. I think that he would find it a challenging and rewarding role. Clearly he would have to give up his duties as a Member of the House and accept the Chiltern Hundreds, but one day he could come back to us and draw on his experience in future debates on these matters. However, I digress. There are people who have such management responsibilities.

To take another example, Forestry Commission rangers organise the stalking of wild deer as part of the process of keeping the numbers to a certain level. Stalking is a major money earner in the areas where it is practised. Quite a few of those who take part in it have traditionally come from other countries, particularly Germany. They pay a lot of money to the hotels in the areas concerned and substantial money even to take part in the activity, but the stalking is controlled by the deer legislation to which the Parliamentary Secretary has referred. The stalkers continue the management process, but, in doing so, they contribute to the local economy.

I am not satisfied with the Parliamentary Secretary's assurance. I believe that Home Office officials could try harder to ensure that a malicious prosecution is never brought in this or a similar area.

John Maples (Conservative, Stratford-on-Avon)

In an intervention, I asked about what appears to be an anomaly in paragraphs 10 and 11, where the wording used to describe the offence and the exception is inconsistent. When we have raised such questions, the Parliamentary Secretary and the Minister have consistently told us that the schedule comes from Deadline 2000 and that they do not know the answer. The Parliamentary Secretary says that there were three schedules to the Bill. That is true. I should have expected her and her colleague to be able to explain that for which the House voted, because the Bill has attached to it the names of the Home Secretary, the Prime Minister, the Secretary of State for the Environment, Transport and the Regions, the Chancellor of the Exchequer and, indeed, the Minister serving on the Committee. It is a Government Bill.

In all the Standing Committees on which I have served, both in opposition and in government, I have never heard Ministers say before the Committee that they do not understand and cannot explain fairly the Bill's fundamental points. This Bill has been in Committee for three weeks; there has been plenty of time for Ministers to consult Deadline 2000. We cannot consult it or ask it questions. It is simply not good enough on raising legitimate points about anomalies to be met with Ministers washing their hands of the matter, saying, ``I don't know: it's not my Bill, and I don't understand it, so you'll have to ask someone else.'' This is a Government Bill, and Ministers should do their homework so that they are able to explain it.

John Bercow (Conservative, Buckingham)

A significant development has just occurred, about which my hon. Friend will be as concerned as I am. Not only have we had stonewalling, hand-wringing and a display of impotence by the Government in reaction to our criticisms, but the Government Whip, the hon. Member for Weaver Vale (Mr. Hall)—he who should be silent—has complained bitterly about the state of affairs and stormed out of the Room in protest.

Mr. David Lepper (Brighton, Pavilion) rose—

John Maples (Conservative, Stratford-on-Avon)

I had virtually concluded my remarks, but I shall give way to the hon. Gentleman.

David Lepper (Labour/Co-operative, Brighton, Pavilion)

I was puzzled by the hon. Gentleman's saying that he and his colleagues were unable to consult Deadline 2000. I draw his attention to the fact that before the debates on the Floor of the House, Labour Members met representatives of the Countryside Alliance to discuss the Bill and other rural issues. Why does he feel barred from contacting Deadline 2000?

John Maples (Conservative, Stratford-on-Avon)

I do not feel barred; I could contact Deadline 2000 if I wanted to, but I should not have to. This is a Government Bill, which is the responsibility of two Ministers who should be able to explain it. I do not know whether they understand it—apparently they do not, because otherwise they would answer our questions. On several occasions, they have said that they are not sure of the answer but will give it some thought and respond in due course to the Committee or to the Member concerned. That is a reasonable, because Ministers cannot be expected to understand every detail. However, it is not reasonable—or acceptable—to say, ``This is not my Bill: it came from somewhere else and I am not even going to bother to try to explain it to the Committee.'' That is what we are facing. If the Committee is to sit for an extra day on Tuesday—

Mike Hall (Labour, Weaver Vale)

Pure repetition.

John Maples (Conservative, Stratford-on-Avon)

I have not made this point before. I hope that by the time the Committee returns on Tuesday, the Parliamentary Secretary and the Minister will have done their homework on what is, after all, a very short Bill, so that they can answer Committee members' questions.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I found it fairly straightforward to talk both to the Countryside Alliance and to the constituent organisations that make up Deadline 2000. With regard to the amendments, the point is not about consulting Deadline 2000, but about the way in which we conduct our debates. The Committee is required to make responsible decisions to improve the Bill and Ministers have the key responsibility of introducing measures to clarify the parts that are ineffective. It is a question not of having to go outside the Committee for dialogue, but of Ministers bringing the relevant information to our debates so that we can make the Bill work.

John Maples (Conservative, Stratford-on-Avon)

The hon. Gentleman reinforces my point lucidly and efficiently. I have concluded my remarks.

David Rendel (Liberal Democrat, Newbury)

As my right hon. Friend the Member for Berwick-upon-Tweed knows, during the lunchtime break I told him that in some ways I was sympathetic to his suggestion that we should include goats in the paragraph rather than goats and/or other mammals. However, in the light of the debate I have reversed that opinion.

The letter from the Parliamentary Secretary makes it clear that hunting does not necessarily include killing. I accept that. Sometimes a hunt may be unable to track down the animal that it is hunting. However, the actions of the goatherd must necessarily include not killing. It would be odd for a goatherd to go out with a dog to find the goats with the intention of killing them. There is therefore a clear distinction between hunting with a dog, in which there is at least the possibility of a kill, and the work of a goatherd.

Edward Leigh (Conservative, Gainsborough)

I am sorry to have to make this point, but I am sure that Labour Members who have been in opposition know that a good Opposition Member sometimes has to be like a Labrador that gets its teeth into something and does not let go. That is how one gets good legislation, and that is what we are trying to achieve as effectively as we can. It is perfectly in order for me to ask such questions of the Parliamentary Secretary. I apologise for being like the cat that brings indoors an unpleasant mess, but I want her to respond to two simple points, because that is her job.

The British Deer Society, which is a responsible body, said that the use of dogs to flush deer from dense woodland is becoming increasingly common in all areas of the UK, and that there is evidence that proper and effective control of deer in newly established, replanted forests can never be achieved humanely without using dogs to flush them out. Will the Parliamentary Secretary please respond to that point, because she has not dealt with it so far? Will she please also respond to the question that we have continually asked, but which she has completely failed to answer: why are paragraphs 10 and 11 framed in terms of animals, given that paragraph 1 mentions only wild mammals? That is tautology. The Bill, which is not well written, is the Parliamentary Secretary's responsibility. Will she please explain those paragraphs?

Jane Kennedy (Labour, Liverpool, Wavertree)

I have already explained that it is for members of the Committee to make their own judgments on that matter. I have made it clear that we are looking carefully at the arguments that have been advanced in this debate.

John Bercow (Conservative, Buckingham)

This has been an illuminating debate, but in some ways a very dispiriting one. My hon. Friends and I have expressed criticisms, one or two of which the Parliamentary Secretary has tried to answer or rebut. By her own admission, there are a number of others that she has been unable to deal with today. She is seeking further and better particulars, and hopes to be able to deal with those criticisms satisfactorily at some future, and thus far unspecified, date—presumably, next Tuesday. Frankly, despite her best endeavours, that really is not good enough.

As my hon. Friend the Member for Gainsborough emphasised, our responsibility is to maximise the Bill's benefits and minimise its defects. The question of whether it is a good Bill or, at least, a less bad Bill, is of the essence. As far as some are concerned, that is not the issue in respect of the amendments. They are not remotely bothered whether the amendments are valid or not. They probably have not studied them, do not understand them and have no opinion on them. Their sole concerns are adherence to a timetable and minimising their personal discomfort. I know that they have a job to do as well, but their personal discomfort and the maximisation of their convenience are of no interest to me—[Interruption.] As far as the hon. Member for Weaver Vale is concerned—

Gordon Prentice (Labour, Pendle)

My hon. Friend's constituency is Weaver Vale.

John Bercow (Conservative, Buckingham)

I got it right—I clearly said, ``Weaver Vale''. If the hon. Member for Pendle has a problem with his hearing, that is his misfortune, not mine.

The hon. Member for Weaver Vale would do well to understand that we have certain grievances, and that, in so far as we want to support our amendments, we will do so. Frankly, the more often we make our points and the less happy he becomes, probably the better we are doing our job—[Interruption.] There is nothing to stop the hon. Gentleman continually chuntering his disapproval, but if he does so, the arguments will take longer to advance, more debate will be required and we shall demonstrate ever more persistence. He should grasp the simple fact that by shutting up we will advance more speedily to a conclusion that would be to his greater enlightenment. If he thinks that the way in which to conclude the debate and ensure satisfactory dispatch of business is to utter rude remarks from a sedentary position to me and my hon. Friends, he is making a serious mistake. He would do better to desist.

We support the amendments. We believe that they are valid and we are disappointed with the Government's unsatisfactory response. This is constitutional vandalism that displays disdain for the rights of the Committee and, indeed, for the integrity of the House. In the absence of proper responses from the Government, we must of course press our amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 17.

Edward O'Hara (Labour, Knowsley South)

I must advise the Committee that there was a further meeting of the Programming Sub-Committee before this sitting and a second programme motion was proposed.

Motion made, and Question proposed,

That—

(1) the last two entries in the Table which forms part of the Order of the Committee of 18th January shall not have effect;

(2) proceedings on the Bill shall be concluded at Ten o'clock on Tuesday 13th February (unless concluded earlier).—[Jane Kennedy.]

The rest of the debate is in Hansard.