§ 3.24 p.m.
§ Lord NORTHFIELD
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Lord Northfield.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord Aberdare in the Chair.]
§ Clause 1 [Close seasons]:
Viscount THURSO moved Amendment No. 1:
Page 1, line 14, leave out from ("Schedule") to end of line 16.
§ The noble Viscount said: The purpose of this Bill, among other things, is to conserve deer and protect the various species of deer which are native and wild to this country. One of the principles of conservation is that the habitat, and the predators upon species to be conserved, must be in some way controlled. If they are allowed to become out of control, it is bad for the species. I think it is unnecessary for me to remind your Lordships that indiscriminate competition being added for habitat, food supply and so on is a bad thing for a native species. One has only to think of the grey squirrel, mink, coypu and so on to realise that it is a bad thing if breeds of plant, bird, animal, bacteria or anything else are let loose within the ecosystem of this country, without careful thought being given to how and why they are being let loose. It is therefore with this in mind that I approach this first Amendment to Clause 1.276
What I am saying here is that we should not make it the sole responsibility of a Minister in a Government to decide, off his own bat, whether another species of animal should be added to the list of wild animals which we consider to be native to this country, and this is what this clause would tend to do. Subsection (2) states:
The Secretary of State may by order amend the said Schedule 1"—
that is, the Schedule of species being granted various forms of protection under the Bill—
by altering any close season mentioned in that Schedule, or by the addition of deer of any species not mentioned in that Schedule.
Every species of deer which is wild and native to this country, every species of deer which has been accepted as having been introduced into this country, is already in the Schedule. The only species which could be added to it at any stage is something which, at the moment, is definitely not native, definitely not wild and, therefore, definitely not a British species of deer. It is for that reason that I suggest to your Lordships that we should amend this Bill by leaving out from "Schedule" to the end of line 16, which means omitting the words:
or by the addition of deer of any species not mentioned in that Schedule and of a close season for any description of deer of that species.
§ This does not, of course, prevent a Government, a Parliament or the country as a whole from deciding that there is some species of deer which ought to be let loose in the country and established wild. What it does is to remove the possibility of some new species of deer being added to our list of native species, being granted a certificate, as it were, which recognises it as a species wild in this country, being granted the protection of a close season, and being granted the right to proliferate, to take up habitat, to compete with existing species of deer and so on. Therefore, I beg to move.
§ 3.30 p.m.
§ Lord NORTHFIELD
I am grateful to the noble Viscount for the spirit in which he has moved the Amendment. However, I want to draw a few facts to his attention. One purpose, among others, of the Bill is to bring up to date and to re-enact, where appropriate, the Deer Act 1963 which applies to England. I do not know whether the noble Viscount 277 realises that the provisions which he seeks to delete are contained in the 1963 Deer Act. If I may speak also to Amendment No. 2, both of these Amendments are a restatement of the provisions contained in the 1963 Act which have worked in a perfectly satisfactory way for the last 14 years. I see no reason whatsoever for going back on the provisions of the 1963 Act. I will not trouble the noble Viscount by reading the provisions of that Act, but t have them in my hand and they are contained in subsections (2) and (3) of Section I of the 1963 Act.
Secondly, the noble Viscount said that there might be some danger in the addition to the subsection of species which are afforded protection in the close season if this was done frivolously or without proper thought. But this cannot be done frivolously or without proper thought. One could only allege that that might happen, because these powers are in the hands of the Secretary of State. No Secretary of State exercises powers like this in a frivolous way; he would hold wide consultations. As the second Amendment says:Before making any such order … the Secretary of State shall consult with any organisations that appear to him to represent persons likely to be interested in or affected by the order.This is a device which is used frequently in order to leave some latitude in technical matters to the Government of the day, after proper consultation.
The noble Viscount made one other point about which I should like to say something immediately. He may he hinting that the powers contained in the Bill require some form of advisory body to be set up, and attached to the Secretary of State. With advisers, I have given some thought to the matter. It is too early yet to say whether we should do it. If, however, the noble Viscount thought that it would be appropriate and would affect the application of the subsection as drafted, I should be very happy to meet him to consider the drafting of an Amendment for the Report stage, to set up an advisory body to watch over the position of deer in this country.
With that assurance and having stated my two objections to the two Amendments, I hope that the noble Viscount will not jeel bound to press them to a vote.
§ Viscount THURSO
I thank the noble Lord, Lord Northfield, for putting the case on the other side. I think that the noble Lord shows a somewhat touching faith in the previous Act, which is surprising in view of the fact that he is busily amending it. He also shows, to my mind, a touching faith in the Secretary of State and in the present state of affairs—that is, to leave it to the Secretary of State to consult those bodies which he believes to be appropriate. On the other hand, the noble Lord has shown me what I consider to be a very large olive branch. He has said that he is interested in setting up some kind of advisory body to advise the Secretary of State.
I think that there is one glaring omission in the Bill; namely, a body which can advise the Secretary of State on all the matters which the Bill is designed to control and legislate for. In Scotland, it is our privilege to have such a body for one species of deer, though not for all. If an advisory body can be set up to advise the Secretary of State on all species of deer in England, I am certain that a very good job will have been done. If the noble Lord, Lord Northfield, is serious about this and thinks that progress can be made in setting up such a body, I shall be more than happy to enter into discussions with him. Therefore, I am happy at this stage not to press Amendment No. 1 and I will not move Amendment No. 2, which also stands in my name.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Nightly close times]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
The Earl of BALFOUR
I apologise to your Lordships' Committee that I shall be unable to attend to the end of the debate; I have a very important commitment later this evening. That is one of the reasons why I did not put down an Amendment to Clause 2 of the Bill. However, may I draw your Lordships' attention to the wording of Clause 2, which states that the time during which you may kill deer extends from one hour before sunrise all the way through the day to one hour after sunset. I believe 279 that this period is too long. It is too dark and too dangerous to shoot one hour before sunrise and one hour after sunset. If your Lordships glance at Schedule 1 you will see that the season extends from November to February. Unfortunately, I have not had a full opportunity to study the Bill and have been unable to take advantage of the Nautical Almanack to determine exactly when it would be dark. However, assuming that we are speaking about the end of November, the sun's declination would be about 20 degrees South; and one hour after sunset the sun would be about 12 degrees below the horizon. This brings it into the nautical twilight where the horizon ceases to be distinctive. If the period were to be only half an hour after sunset, this would be the time when, if you were driving a car, you would expect to put on at least your sidelights, if not dipped headlights.
I do not intend to take up the time of the Committee any further. However, on the grounds of safety, remembering that the best shot can occasionally miss with his first shot and that if it is too dark he may fail to kill the deer he is shooting at, may I recommend to the noble Lord, Lord Northfield, to whom I am sure we are all grateful for having introduced this Bill, that the time in Clause 2 should be reduced to half an hour before sunrise and half an hour after sunset.
§ Lord NORTHFIELD
I am grateful to the noble Earl and I should like to assure him that I will take some expert advice before the Report stage, but I should like to draw his attention to the fact that so far as I know this is a provision which has worked satisfactorily since the 1963 Act came into force. This provision is identical with the provisions in that Act and if there is new information I shall be glad to have it in order that the matter may be considered before the Report stage, although I say that without giving any commitment. It will depend upon the advice I receive.
§ Viscount THURSO
I should like to add a word from the practical point of view. Anybody legally and sensibly trying to cull deer will not, if they can possibly help it. be firing their first shot one hour after sunset or one hour before sunrise—particularly the former. People 280 doing the job professionally and sensibly will try to do it in daylight. On the other hand, if by any chance they have the misfortune to be out on their own and to wound a deer early in the day it is as well to give them usable light in which to try to follow up that deer and bring it to the bag. With telescopic sights, up to one hour after sunset and at one hour before sunrise there is a great deal of light within a telescope; the deer is clearly visible in most lights, and the graticule is clearly visible.
§ Lord GISBOROUGH
I should like to draw attention to the roedeer buck which is shot during the summer when there is plenty of light one hour before sunrise and one hour after sunset, and indeed it is about the only time that it can reasonably be shot.
§ Clause 2 agreed to.
§ 3.42 p.m.
§ Lord NORTHFIELD moved Amendment No. 3:
§ Page 2, leave Out line 9.
§ The noble Lord said: This is a drafting Amendment to delete line 9 on page 2. I would simply explain that this drafting Amendment is to enable Parts I and II of the Bill to become one Part instead of two. I should like to take this opportunity of thanking the Home Office, who have assisted me a great deal with the technical redrafting of this Bill. From time to time this afternoon I hope to have the opportunity to move Amendments, most of which are drafting and virtually all of which have been kindly and helpfully suggested by the Home Office to improve the drafting of the Bill. I give the Committee the assurance that such drafting Amendments will not in any way change the sense of the Bill.
§ The reason for running Parts I and II together is that, as later Amendments show, it is better to subdivide the penalties, Part by Part. Instead of having one penalty clause for the whole Bill, it is better, as we shall see when we move on, to add penalties which apply to each Part of the Bill. We shall later come to an Amendment dealing with the appropriate penalties to go with Parts I and II as so joined. I beg to move.281
§ Lord BURTON
Would I not be correct in saying that, if the words "Part II" are to be removed, the following line, which is the heading to the Part, would also have to be removed?
§ Lord NORTHFIELD
That has slightly puzzled me and I do not know the answer to it. I think we might leave it in order to see whether the printer then deletes it as a consequence of this Amendment. I suggest we look at the Bill when it has been reprinted.
§ On Question, Amendment agreed to.
§ Clause 3 [Unlawful weapons, etc.]:
Viscount THURSO moved Amendment No. 4:
Page 2, line 11, after ("to") insert ("subsection (4) below and to").
§ The noble Viscount said: Amendments Nos. 4, 5, 6 and 7 all relate to the same thing and therefore, with the agreement of the Committee, I will speak to them all at the same time. The principle involved here is that this clause makes unlawful a number of ways of taking or handling or treating deer, with all of which would agree if they are to be applied to deer in the wild state; but, as your Lordships are possibly aware, since the previous Act was passed, great interest has arisen in deer farming, which is becoming a very real and active proposition. It is being pursued in an experimental way by universities and agricultural colleges, and in fact in Scotland it is being taken up by the Highlands and Islands Development Board who have bought an area of ground on which to start a demonstration deer farm in a practical sense.
§ If this Bill goes through in its present form a number of things which it may be practicable, sensible and reasonable to do within the confines of a deer farm are banned. For instance, the marking and tagging of deer; the handling of deer by moving them round by vehicles, and so on. I felt that, as there is no Act and no regulation governing the farming of deer in any way, it would be helpful if those provisions were left out of this Bill in so far as they apply to deer on land totally enclosed and where deer are not kept in the wild state but are obviously kept for some sort of agricultural or commercial purpose.282
§ This does not mean that I consider that deer kept for an agricultural purpose should in any way be ill-treated. I consider that they should be as well treated as possible. But what is ill-treatment to a deer in the wild state may not necessarily be ill-treatment to a deer in the tame state. For instance, to kill a deer after dark in the wild state has clearly been demonstrated to be dangerous and undesirable, but to kill it after dark in a lighted shed is completely reasonable if it is an animal that has been farmed. It would be unreasonable not to allow a deer farm to slaughter out of season.
§ I have tabled these Amendments in order that your Lordships may consider the position of deer farming in relation to the management of deer as a whole in the country. Without these Amendments we should be passing a law and amending an Act to control deer and the management of deer without taking deer farming into account at all. I beg to move.
§ Viscount MOUNTGARRET
I think the noble Viscount has a very good point here, but surely the simple way to deal with this matter would be, not to have all these Amendments, but to include a clause relating specifically to the fact that deer farms should be excluded.
§ Lord BURTON
Surely this proposed legislation already covers deer parks. I am not quite clear what would be wanted in a deer farm which is not already available for deer parks.
§ Lord NORTHFIELD
Once again I am grateful to the noble Viscount, Lord Thurso, but I should like to draw his attention to the effect of these Amendments. The effect would be that some of the methods of killing which we all deplore in this House would then be made legal on a deer farm. I wonder whether the noble Viscount has realised that? In fact, this would be an open door to cruelty on a deer farm. In trying to reach the quite legitimate objective which he has in mind—namely, to see whether particular provisions are needed for the new, and now spreading, system of deer farming—he is in fact moving Amendments which would allow such deer farms to practise almost any form of cruelty if they were run by unscrupulous people. I am sure he does not wish to do that. Therefore if he would 283 withdraw his Amendments there would be the possibility at Report stage of drafting a clause to deal with deer farms, and, if that were not possible, I would agree with him that perhaps some small Bill might be needed at a future date to deal with deer farms. They are, as I understand it, new in England, to which the Bill applies, and, consequently, would not have very great effect for the time being until deer farming began to spread to some extent in England. I would suggest that there are very great drawbacks to the noble Viscount's Amendment in the precise effect it would have in unscrupulous hands. He could reach his objective by a different route at Report stage, or indeed in another small Bill. For those reasons I hope the noble Viscount will not feel bound to press this Amendment.
§ Viscount THURSO
I thank the noble Lord, Lord Northfield, for his suggestions. In moving these Amendments, I had felt that, in the first instance, it might have been simplest to leave out all the provisions of the Bill relating to deer farms, but it is slightly difficult to disentangle them. For instance, the use of stupifying drugs, muscle relaxing agents and so forth, would be an everyday practice on a deer farm, in the sense that they would be necessary in order to carry out operations. I suggest that the idea of deer farming is catching on fairly strongly North of the Border, and one should be prepared this side of the Border to receive the idea. It would not be very safe to sit back and think that deer farming will not cross the Border if it proves to be economically successful in Scotland. There will be areas in England where deer farming is shown to be even more profitable than it is in Scotland. I take the noble Lord's suggestion that we might get together on this and look for a clause that would satisfy deer farming as such. If he would be agreeable to discuss with me the possibility of such a clause, then I would be happy to withdraw these Amendments which relate to deer farming. I would propose not to move Amendments Nos. 5 and 6, and to withdraw Amendment No. 4.
§ Lord BURTON
Before the noble Viscount withdraws the Amendment, I wonder whether he could tell me what he 284 has specifically in mind which would need to be done on a deer farm which is not done already in a deer park?
§ Viscount THURSO
Particularly the administration of stupifying drugs, the methods of killing and matters of that kind.
§ Lord BURTON
I think it would be most undesirable if you started using stupifying drugs on a deer farm. These drugs persist. I have heard of a case where an animal was given an overdose and when the vet came to kill it he got some of the blood on his fingers and he passed out. It would be most unsatisfactory if drugs were administered to animals which were for slaughter for human consumption.
§ Viscount THURSO
I am not suggesting that one should drug animals which are to be slaughtered for human consumption. I am sure the noble Lord, Lord Burton, also farms as well as shoots deer, and he must be well aware of the number of times his vet has dealt with his animals with muscle relaxing drugs for various purposes. Therefore, it has to be legal, and not merely in the narrow sense of medicine; it may well be necessary in relation to the actual operations that take place on a farm.
§ Amendment, by leave, withdrawn.
The CHAIRMAN of COMMITEES
There is a mistake on the Marshalled List; Amendment No. 7 refers to Clause 4. So the Question now is that Clause 3 stand part of the Bill.
§ Clause 3, as amended, agreed to.
§ Clause 4 [Prohibition of poaching, etc.]:
Viscount THURSO moved Amendment No. 7:
Page 3, line 15, at beginning insert ("Subject to subsection (1A) below").
§ The noble Viscount said: This is the question of the following of a wounded deer. It is perfectly true that in Scotland it is not necessarily legal to follow a wounded deer off your land on to somebody else's; nevertheless it is in fact the custom for obvious humanitarian reasons. It is something which it is perfectly possible to do in Scotland, as I know from personal experience, without anybody taking offence or taking legal action.285
§ However, when we are examining legislation relating to deer I think we must examine the question of what happens if you have the misfortune to wound a deer, or to find an injured deer on your land; you set out in pursuit of it and it crosses on to your neighbour's land with you in hot pursuit. Clearly, to hold back and not pursue it would be to make certain that it continues to suffer. To pursue it is at least an attempt to put an end to its suffering. Therefore, what I have sought to do here, in conjunction with Amendment No. 8, is to make it possible to pursue a wounded deer across arbitrary territorial boundaries and dispatch it as quickly and as mercifully as possible. That is the reason for these Amendments. I notice that there are other Amendments by the noble Lord, Lord Northfield, which seek to do the same thing, and it may well be that your Lordships would like to discuss the whole question rather than just these two Amendments which I have put down at this stage.
§ The CHAIRMAN of COMMITTEES
I should also point out another mistake on the Marshalled List. Amendment No. 8 should have been listed after Amendment No. 11, and I will call it when we reach that point.
§ Lord NORTHFIELD
I wonder whether that provides us with an opportunity to deal with the matter in this way. I was going to suggest to the Committee that the Amendment which the noble Viscount has moved is dealt with by my Amendments Nos. 9, 10 and 11. If those Amendments were passed and the noble Viscount was dissatisfied, we could then come to Amendment No. 8, because it follows Amendment No. 11, as the Chairman of Committees has just said. If the noble Viscount would withdraw Amendment No. 7 for the moment, he could come back to No. 8 when we have dealt with Nos. 9, 10 and 11.
§ Viscount THURSO
Yes. I prefer to think of all these as being one and the same, in that Amendments Nos. 7 and 8 have to be taken together and Amendments Nos. 9, 10 and 11 have to be taken together—really they all have to be taken together. We are both after the principle of constant pursuit of an injured animal 286 in the interests of mercy. I am quite happy to accept the Amendments tabled by the noble Lord, Lord Northfield, if noble Lords agree. At this stage I think that we should ask whether anyone else wishes to speak on any of these Amendments. If I have understood the consensus of the Committee, I shall be happy to withdraw my Amendments in favour of those of the noble Lord, Lord Northfield.
§ Viscount MOUNTGARRET
If it is to come to a decision on which type of Amendment we prefer, I am bound to say that I rather prefer the phraseology of the Amendment tabled by the noble Viscount. I do not like the words "without reasonable excuse"; they open the door to some confusion later. Either something is lawful or it is unlawful; we do not want half measures. The object that the noble Viscount and the noble Lord, Lord Northfield, are trying to achieve is admirable and absolutely right. Of the two, I prefer the drafting of the noble Viscount.
§ The CHAIRMAN of COMMITTEES
Amendment No. 7 is the Amendment that has been moved, but the discussion is ranging over Amendments Nos. 7 to 11.
§ Viscount THURSO
Perhaps I could return to the discussion. Clause 4 of the Bill says:If any person unlawfully—This is a prohibition of poaching, with which I am in hearty accord. It is one of the ways in which one regularises the culling of deer. However, there is the case where a deer is standing, for instance, on one side of a boundary fence and as one squeezes the trigger the deer moves and the bullet does not lodge in a lethal place; the deer jumps the fence and is then on someone else's land. In order to follow that deer quickly to despatch it one has to cross the fence. No one is on the other side with a gun waiting to despatch the deer. Therefore, we must have some sort 287 of provision for crossing over and killing the deer, otherwise the deer will be left to die or to suffer.
- (a) takes or wilfully kills, injures or drives any deer on any land; or
- (b) enters or is on any land in search or pursuit of deer with the intention of taking, killing, injuring or driving deer, he shall be guilty of an offence."
Both the noble Lord, Lord Northfield, and I recognise that that is the case. I suggest that we should specify the case, and that we should say:Subject to subsection (1A) below "—which is my Amendment No. 7. Therefore, Amendment No. 7 is a paving Amendment for Amendment No. 8. Amendment No. 8 says:… It shall not be an offence under subsection (1) above if any person is in constant pursuit of an injured or wounded deer and such injury or wound was accidentally inflicted on land where the pursuer was lawfully entitled to take deer.I am being specific about this and saying that if a deer has been wounded upon one's land one can follow it on to one's neighbour's land in order to despatch it. In that case one should not he committing an armed trespass upon one's neighbour's land; one would be in constant pursuit. That has a naval analogy where, for instance, a fisheries protection vessel is following a poacher and can remain in constant pursuit. I prefer my wording, but if noble Lords prefer the wording of the Amendment tabled by the noble Lord, Lord Northfield, I am prepared to accept that because I think that his Amendment means the same, although his does not say so as definitely and clearly as mine.
§ 4.5 p.m.
§ The Earl of MANSFIELD
Perhaps I could intercede. It seems that the Committee's deliberations are becoming a little confused, although that is in no small measure due to the unfortunate failure to marshal) the various Amendments properly. It may be my stupidity but I have failed to realise that Amendments Nos. 8 and 11 are trying to say the same thing. Indeed, I do not believe that they do. If they are trying to say the same thing, their individual effect will be very different. Indeed, I expected the noble Lord, Lord Northfield, to rise to move Amendment No. 11 with Amendments Nos. 9 and 10, and to justify it on a rather different basis than the justification of Amendment No. 8. I see him nodding, and I believe that I am right about that. As I have a number of semi-legal questions to put to the noble Lord, Lord 288 Wells-Pestell, on Amendment No. 11, I should very much prefer it to be considered separately. I intend to do just that. Therefore, the noble Viscount's Amendment is a hot pursuit Amendment. Speaking in a private capacity, I should have thought that it was an entirely merit-worthy Amendment, or at any rate an Amendment which deserves serious consideration. If the noble Viscount is minded to withdraw it on the basis that Amendment No. 11 is acceptable to the Committee, he would not necessarily achieve the effect that he seeks.
§ Lord NORTHFIELD
Perhaps I can help on this matter. I should like to consider Amendments Nos. 7 and 8 between now and the Report stage. I give the noble Viscount the assurance that if there are no intrinsic disadvantages in the wording of Amendments Nos. 7 and 8, I shall ensure that they are tabled on Report. In other words, I will examine them on their own merits, and if the noble Viscount is willing to withdraw them now I shall table them on Report. Then perhaps we can proceed to consider Amendments Nos. 9, 10 and 11.
§ Viscount BROOKEBOROUGH
When one has followed a deer in hot pursuit from one's own land on to the land of someone else and has duly despatched it, to whom does the deer then belong?
§ Viscount THURSO
The situation in Scotland is very different from that in England. Usually one does this late at night, when it is exceedingly dark and wet and one is far from home. Therefore, the only person really prepared to go that distance and drag the carcase hack to where it can be dealt with is usually the person who has fired the first shot. So nine times out of 10 if the deer is only slightly over the march it is claimed by the person who has fired the first shot. He then telephones his neighbour and says, "Look, Charlie, a deer has strayed over on to your land and I have claimed it", and usually nothing much happens. On the other hand, if the deer finally falls on his neighbour's front lawn, he would feel very hard put to it to come round in his Land Rover, pick it up and 289 drive away. It is a very difficult matter to decide. The law states that if the deer falls on the neighbour's land it belongs to the neighbour and by rights the neighbour can claim it. That being accepted, nevertheless the person who fires the first shot should be indemnified against committing an offence in despatching the deer mercifully.
My Amendment says nothing about ownership, it only says, "The right to kill". I feel that this is important and necessary because deer will be wounded standing beside fences; they will cross fences on to other people's land; and it may be necessary, if the noble Lord, Lord Northfield, accepts these Amendments at Report stage, to add some further words in order to clarify the point. I do not think it invalidates the point that the man ought to be legally allowed to cross the barrier.
The Earl of BALFOUR
May I add one more remark. I know of a case where a deer must have struck a stone when jumping a fence, or perhaps caught his foot in a fence and had broken the fore wrist. I am not an expert on this. The keeper and I followed that animal for over four miles before we could get close enough to it to put it out of its misery. That was partly on our land, but it did eventually die on my own property. However, deer can go an incredible distance with a broken leg, and that is where I feel that this "constant pursuit", and the words used here, are important.
§ Lord DULVERTON
I have been trying to follow the arguments on the noble Viscount's general Amendment, and I fail to see much difference in what he has set down and what is already stated under the existing Clause 17(2) which comes at the bottom of page 7. It says:A person shall not be guilty of an offence of taking, killing … by reason only of the taking or killing, or attempted taking or killing, of any deer which appeared to be so seriously injured …It seems to me that that virtually achieves what the noble Viscount's Amendment is setting out to achieve in slightly different words.
§ Lord SWANSEA
The difference is that Clause 4, which is what we are discussing, is not covered by Clause 17(2). 290 If Clause 4 was included in Clause 17(2) then he would be right.
§ Viscount THURSO
I set a great deal of store by the principle of hot pursuit, because otherwise it is difficult to say, if you are not in hot pursuit of the animal, that it is your business to despatch this particular wounded animal. It might be for you to tell your neighbour that he has on his land an animal which appears to be wounded, which again is something I have done often, seeing it through a telescope. If you see an animal on somebody else's land you let him know, but I do not gratuitously try to do his job for him. However, if I am the responsible party, I feel that I should be left with the responsibility of despatching the animal, and this is the principle of this Amendment. I should be quite happy to leave it to the good offices of the noble Lord, Lord Northfield, and withdraw Amendment No. 7 at this stage until we can see what we can do at Report.
§ Amendment, by leave, withdrawn.
§ 4.14 p.m.
Lord NORTHFIELD moved Amendment No. 9:
Page 3, line 15, leave out ("unlawfully") and insert ("without reasonable excuse").
§ The noble Lord said: I beg to move Amendment No. 9, and I hope that it will be for the convenience of the Committee if we discuss with it Amendments Nos. 10 and 11 at the same time. Clause 4 is an important clause in the Bill. May I begin by dealing with the point raised by the noble Viscount, Lord Thurso, in his last Amendment. Possibly what my Amendment would do to meet his case—I should like to hear what the noble Earl, Lord Mansfield, says on this point—is this. My Amendment would say that instead of it being unlawful to enter land in the way set out in the clause, it would be an offence to enter land "without reasonable excuse". That is the first point to register with the noble Viscount, Lord Thurso. There would be a clause here that would allow a person with reasonable excuse to enter land and to take, kill, injure, and drive any deer on that land and enter in pursuit of deer on to that land. Secondly, if he looks at Amendment No. 11, he will see that he would have a double-banked help in reaching his objective. That Amendment goes so far 291 as to say that this would be particularly the case where a person could say that he had a reasonable excuse, in that he had every confidence that the people who owned the adjoining land would be willing for him so to enter and to continue the pursuit of the deer concerned.
§ The difficulty that I can foresee in the mind of the noble Earl, Lord Mansfield—I hesitate to anticipate what he might say in case I am wrong—is that he may say that this is a clause to deal with poaching and, therefore, how can it cover the kind of case raised by the noble Viscount, Lord Thurso, when poaching is not involved at all. I would remind him that it says, "Prohibition of poaching, etc." and I should have thought that this is probably the way in which we could see this clause being interpreted; namely, that it is a prohibition of illegal entry on to land in pursuit of deer. That is a slightly wider interpretation, which I hope is legitimate, based on the addition of the word "etc." in the rubric of the clause. However, that may or may not meet Lord Thurso's point, and I have already given an assurance that I should like to consider the two matters before Report and take advice. If he is dissatisfied, and the advice supports him, I shall gladly move Amendments to fulfil what he had in mind in Amendments Nos. 7 and 8.
I come now to the wider point about the redrafting of Clause 4. Why have these Amendments been put down to Clause 4? They have been put down because, as I said at Second Reading, I have made every possible attempt to meet the objections of the British Field Sports Society to Clause 4 as drafted. I am able to tell the Committee that the British Field Sports Society are satisfied with the effect on the clause of my Amendments Nos. 9, 10 and 11. The British Field Sports Society were concerned that, unintentionally on my part, stag hunting could have been made illegal by Clause 4 as originally drafted. That is why the clause has been redrafted in this way to say that people who enter land must have reasonable excuse and that they must be able to say, as a means of avoiding any penalty or conviction for it, that they, at the time of the alleged offence—this is Amendment No. 11—
had reasonable cause to believe that the person or persons entitled to consent to the act or acts
would have consented. I do not wish to justify that wording in any final sense. I can say simply that it has been done to meet the views of the British Field Sports Society, and I understand that they are now satisfied with this wording.
§ I come thirdly to the point raised by my noble friend on behalf of the Government on Second Reading. He was not anxious to have a clause in the Bill outlawing poaching because this is, he said, a departure in our law from the existing practice. I sense in this Committee that if my noble friend says that again he will be the only one to say it. I believe there is virtual unanimity of opinion in this Committee—if there is not unanimity, there is overwhelming support—for a clause to outlaw poaching. It is one of the central purposes of the Bill, and without Clause 4 the measure would become largely ineffective.
§ The reason is that the police find that the best way to catch poachers is not to be on the land seeing them doing illegal things, using the wrong weapons or whatever else it may be, but by being able to catch them coming off the land with the deer in their possession. They can then be asked, "Are you an authorised person? Where did you get the deer? Are you aware that you have committed an offence by illegally entering?" Without this clause, poachers may drive a coach and horses through the carefully balanced provisions of the Bill and get away with the continuation of poaching.
My noble friend may reply, "That may be so, but what about the view of the police?" True to my word on Second Reading, I have been testing the opinions of the police, and I hope that those opinions will weigh with the Home Office in this matter. I have asked the police bodies for their views about the Bill and I am able to read from two letters which I hope will go some way towards reassuring the Government, and any other doubting noble Lords on this matter, that there is no question but that the police support the Bill in all its detail. The first letter—I will read one of its two paragraphs—is from the Police Federation of England and Wales and is dated 21st March. It says:
My Committee have now examined the Bill in detail and I am pleased to inform you that we support its proposals in all its aspects.
I emphasise, "in all its aspects", and that is the view of the Police Federation. The second letter, from which I will read a little more, is from the Police Superintendents' Association of England and Wales, a separate body whose views are of course very important. It says:
On 7th March you wrote seeking the views of this Association on the problems being experienced throughout the country by the rapidly expanding problem of deer poaching.
There is no shirking the issue there, for the letter clearly refers to, "the rapidly expanding problem of deer poaching". It continues:
The Executive Committee considered this question at a meeting held"—
appropriately, one might say—
at Nottingham on 5th April 1977. While the proportions were not known to all members, it was apparent that the members from rural areas had been experiencing problems and would welcome an extension of the Deer Act 1963, in particular in respect of powers to stop, search and seize.
While that may not exactly cover Clause 4, it is as near as one is likely to get in a letter of that kind, which ends:
I am therefore authorised to inform your Society"—
the letter was addressed to the Deer Society rather than to me—
that this Association supports the Deer Bill which is presently being discussed.
§ I have gone into this matter at reasonable length because of the three attacks on the clause, attacks which I hope I have gone at least some way to answer. I hope I have dealt with the points raised by the noble Viscount, Lord Thurso, although I do not claim to have done so exhaustively, which is why I should like to consider his Amendments before Report. I have dealt with the question of the British Field Sports Society and I have made at least the beginning of an attack on my noble friend, if I may say so, for what I consider was the reactionary view of the Government on this matter on Second Reading by quoting to him the full support of the police bodies for the amended clause. Even if my noble friend has more words to say about the matter, I hope that in these circumstances he will temper them in the knowledge that many people are against him on this issue.294
§ Lord LLOYD of KILGERRAN
Has the noble Lord, Lord Northfield, sought the advice of the Forestry Commission in regard to the clause? My experience of the management of deer arises largely as a spectator in the Lake District, where there is an abundance of deer in the forests and plantations. As he has obtained the advice of the British Field Sports Society and the Police Federation, may I ask him whether he has done the same with regard to the Forestry Commission?
§ Lord NORTHFIELD
I cannot answer that question directly, but I can say that one of the main advisers helping me with the drafting of the Bill and looking at Amendments to it has been an official of the Forestry Commission, and he has not at any time told me that the Forestry Commission has any doubts about Clause 4.
§ 4.26 p.m.
§ Lord WELLS-PESTELL
It might be convenient if I were to intervene at this point because the Government have certain views on the matter and I feel that I should give my noble friend Lord Northfield an opportunity of continuing, through me, his onslaught on the Government in respect of this issue. I thought it might be helpful to intervene now so that, in any discussion which undoubtedly will follow, noble Lords will have some idea of the Government's thinking on Clause 4, and, to some extent, what I say will be a repetition of what I said on Second Reading. However, having said that, I can give the Committee an undertaking that we will read very carefully not only what my noble friend has said but what other noble Lords will say when I have sat down.
This series of Amendments goes to what is probably the central issue in the Bill. Indeed, they raise the question of what is really the Bill's primary purpose. The Long Title of the Bill recites that its purposes are to:… re-enact with amendments the Deer Act 1963; to provide for the better management of deer … to prevent the poaching and the illegal taking, killing and injuring of deer …295 I think it is agreed that the Bill is not about conservation; nobody has suggested that deer are an endangered species. Indeed, as noble Lords know, they are on the increase. The provisions in Clauses 1 to 3, or at least the majority of them, suggest that the primary purpose of the Bill is to prevent cruelty to deer, although that is not specifically stated in the Long Title. Nevertheless, I think the whole tenor of my noble friend's presentation of his Bill —and, if your Lordships' debates on Second Reading are anything to go by—makes the purpose clear.
I can assure the Committee that the Government's general position is to give unqualified support to the principle of outlawing any cruelty or unnecessary suffering to animals, whether they be wild or in captivity. Despite the importance attached to the clause which these Amendments seek to improve, I have to advise the Committee that the Government find the clause unacceptable in principle and that these Amendments do nothing, in the Government's view, to cure its defects.
It might be thought that a clause with the object, as the side note to Clause 4 states, of introducing a prohibition on poaching, represents little more than what I think one could call—I am not trying to be offensive—a statement of the obvious. In the Government's view, however, that is very far from being the case. Where deer have been reduced to captivity—for example, in a deer park—we can probably recognise a property in them and protect that, but, this clause refers in the widest terms to "any land" and that, as the Government understand it, includes public highways and common land as well as private property. I believe that a provision drafted in such wide terms is bound to give us pause for thought and to make us ask what offence we are seeking to create and what policy we are seeking to implement.
Before coming to the Amendments, I think it important to consider the clause in the form in which it was introduced and the offences which it seeks to create. The key word is "unlawfully". Under the clause, if any person takes or wilfully kills or injures a deer unlawfully, wherever the action may take place, he commits an offence. If he drives deer unlawfully, he commits an offence. If he enters 296 land unlawfully for any of these purposes, he commits an offence, as he does if he is on land unlawfully for those purposes.
In other words, if a person contravenes any of the provisions of the first three clauses in this Bill, he will also automatically commit an offence against Clause 4 by virtue of that illegality. To that extent, the provision makes it an additional crime to commit one of the other crimes under the Bill and exposes the offender to a further charge and a further penalty. If he trespasses in pursuit of a deer, he also commits an offence. If he infringes some other person's shooting rights, he commits an offence. Before we contemplate putting persons in a position of double jeopardy or convert civil wrongs into criminal offences, I believe that we need to be satisfied beyond all doubt that the case for doing so is really strong and that there is no other more satisfactory way of achieving the desired object.
There is no disagreement about the real mischief which the clause is intended to deal with. It is the activities of organised, commercial poachers who are entirely ruthless in their methods. However, other provisions in the Bill already go a long way towards strengthening more substantially the legal armoury against these malefactors. Clauses 1 and 2 protect deer when they are at their most vulnerable. Clause 3 prohibits many cruel methods of killing. Other provisions very substantially strengthen the powers of the police in respect of entry, arrest and seizure of weapons and other property, including vehicles, which may be used in the commission of these offences. The powers of the courts and the penalties that they may impose are also strengthened.
In the light of these provisions it is legitimate to ask what loophole remains which the sweeping provisions of Clause 4 are needed to fill. As the Government understand it, the real mischief is in the use of dogs. If this is so, the question inevitably arises, why does the Bill not include a straightforward provision making it unlawful to use dogs to take, kill or injure deer, instead of introducing the sweeping and circuitous approach adopted by Clause 4?
I shall now turn to the Amendments. The first Amendment of substance in 297 the name of my noble friend is intended to overcome the difficulty of the use of the word unlawfully", the objections to which I have already discussed. For that word, it would substitute the words "without reasonable excuse". In the Government's view, these words serve only to introduce a fresh range of difficulties. This is a penal provision and this House has emphasised on numerous occasions the importance of ensuring that criminal offences are defined in precise terms which the court will be able to interpret without difficulty.
Before considering the meaning of this phrase, however, I would draw to your Lordships' attention the fact that the Amendment has the effect of shifting the burden of proof. As introduced, the clause would at least require the prosecution to prove an illegality of some kind in connection with the activities complained of. Under this Amendment, however, proceedings might be instituted on the merest suspicion, leaving it to the defence to prove reasonable excuse. We then come to what we mean by, "reasonable excuse". Is it a reasonable excuse to shoot deer using the most suitable rifle on one's own land? I do not believe for one moment that my noble friend Lord Northfield intends to outlaw the properly regulated shooting of deer for sport. However, his Amendment gives the courts no guidance upon this point. It will presumably be reasonable to kill deer for the protection of person or property, or to put them out of their suffering, but what other reasonable excuses will the courts find to justify the killing of deer? The question will be even more difficult to determine in relation to the driving of deer or entering on or being present on land for those purposes.
Very similar objections apply to the second Amendment of substance in the name of my noble friend, which would remove the word "wilfully" from paragraph (a). This goes a long way towards creating an absolute offence—a category which Parliament is always most reluctant to sanction. Will it be a reasonable excuse to drive deer accidentally or to kill a deer accidentally when it runs into the road in front of one's car? The objections to the new subsection introduced by the third Amendment of substance are rather 298 different. It would seem that this provision is intended to safeguard the position of stag hunts. I do not propose to say anything about the Government's attitude to stag hunting. This is a matter on which we reserve our position. I think that, for the present purpose, it is sufficient to say that the Government's view is that a provision under which the determination as to whether or not an offence has been committed depends on the court's assessment of the state of mind of the defendant is wholly unworkable and is fundamentally objectionable.
I regret that my intervention on this issue has been lengthy, but I said at the beginning that rightly or wrongly—and I know how my noble friend feels about that and his view may be shared by other Members of your Lordships' House the Government have a responsibility in matters of this kind to tell your Lordships what are their feelings. Whether or not they are acceptable is another matter. It is the Government's view that the issues raised by this clause and by the Amendments to it are of considerable importance. We believe that the clause is misconceived, that it seeks to achieve what we believe to be its object—the elimination of cruelty—by circuitous and objectionable means and that the Amendments do nothing to improve the clause or to overcome the objections to it in any way.
I have to advise the Committee that in the Government's view it would be wrong for the Bill to reach the Statute Book with this clause in either its original form or as is proposed in the Amendment. I must advise your Lordships that the Government feel that the clause should not stand part of the Bill. If the Committee act contrary to my advice—or rather the advice of the Government—and the clause is retained, the Government may wish to consider what action they can take at a later stage. I think it right that your Lordships should be given the Government's view. I apologise for taking so much time. I fear that my noble friend will not find much comfort, if any, in what I have said. Of course, I concede that he has the right to deal with the Government as he may well feel he is justified in doing—
Lord DE CLIFFORD
I should like to raise a point with the noble Lord before he sits down. Earlier in his speech he asked, why should there not just be a clause which prohibits the use of dogs, but he has ended up by saying that the Government will not make any decisions on the subject of deer hunting. But he has done that. He has said, "Why don't you prohibit the use of dogs?". What are hounds if they are not dogs?
§ Lord WELLS-PESTELL
I think I said that we would make no comment on stag hunting—not deer hunting. The Government were throwing that out as a suggestion. If that is what is wanted, why not include a prohibition of dogs? I was making the point for no other purpose than to suggest that this course was open to the Committee if they so wished.
§ 4.43 p.m.
§ The Earl of MANSFIELD
I must confess that I had intended to twit the noble Lord, Lord Wells-Pestell, gently but I find myself, in certain aspects of what he said, so much in agreement that I will not do that. I do not want to follow him particularly down the paths he went. At the Second Reading of the Bill I thought that from this Bench I had welcomed the Bill, but I had two major reservations and Clause 4 was one of them. That brought a certain amount of criticism from my noble friends who sit behind me because I think that they felt that I was against the spirit of the Bill, which was very far from being so.
Clause 4 has a perfectly proper and laudable motive; namely, to stop poaching. Here if I disagree with the noble Lord, Lord Wells-Pestell, it is on that point. I regard it as extremely desirable to stop deer poaching. But there is a difficulty here. As it stands, the Bill puts those who pursue the perfectly legal activity of stag hunting in grave jeopardy. That was a matter on which the noble Lord, Lord Northfield, agreed with me wholeheartedly, and he went further to say that this was a matter which would have to receive the attention of your Lordships' House in Committee in order to remedy this obvious defect.
From that stage we go on to consider-whether the Amendments which the noble 300 Lord has tabled at this stage of the Bill first of all remedy the defect and, secondly, make legal sense. As I read the Amendments, I think that the answer to both those questions will have to be, "No". As it stands the clause is perfectly sensible, if one leaves out considerations of stag hunting. The clause states: "If any person unlawfully"—and "unlawfully" is a word which is well hallowed in the English law, and it means what it says" takes or wilfully kills "—and so on, as is stated in paragraph (a), while in paragraph (b) it states,enters or is on a land"—and it goes on to refer to what they might do and to say that if they do it they will be guilty of an offence. All of that is perfectly comprehensible and is in perfectly good English.
But in Amendment No. 9 the noble Lord proposes to remove the perfectly satisfactory word, "unlawfully" and insert the phrase, "without reasonable excuse". In Amendment No. 10 he proposes to leave out the word "wilfully" in relation to killing, making it some kind of deer manslaughter instead of murder, but I do not really quarrel with that— and I must not be facetious. But in Amendment No. 11 the noble Lord gives a defence. I think that part of the difficulty is that if these Amendments were accepted, it would be perfectly proper to prosecute the owner of land under Clause 4 because Amendment No. 11, and so far as I know the Bill itself thereafter, does not go on to specify the person or persons entitled to consent to the act.
If I might go back for a moment to the Amendment of the noble Viscount, Lord Thurso, I should point out that if, for instance, he were to depend on this Amendment to chase a wounded deer across somebody's marsh on to somebody else's land, I do not think that in law he could rely on Amendment No. 11 as a defence to a prosecution under Clause 4. But the matter does not end there—
§ Lord NORTHFIELD
Would the noble Earl explain why that is so? I did not quite understand why he thought that Amendment No. 11 did not give a person a reasonable excuse to chase a wounded deer on to other land.
§ The Earl of MANSFIELD
If the because he had wounded a deer and noble Lord will bear with me, I should prefer to get to the end of my objection to Amendment No. 11 and then come back to that point; I promise that I will do that. What Amendment No. 11 does—and this I find objectionable in the legal sense—is, in a penal provision, in what is to be a part of our criminal law, to throw the burden of proof on to the defence; the defendant would have to show that he had reasonable cause to believe certain things. At a time when increasingly in our criminal law we are placing the burden upon the prosecution, and not on defendants, this flies in the face of what might be called modern trends.
Secondly, in my submission to the Committee, instead of a subjective test, there is imposed upon the defendant an objective test. This is one of the matters about which I intended to ask the noble Lord, Lord Wells-Pestell. He may have some ideas on this. For instance, over the squatting provisions of the Criminal Law Bill, which received its Third Reading earlier this week, the noble Lord, Lord Harris of Greenwich, for the Government, removed from a portion of that Bill these very words with which we are now concerned, because he said that he, and indeed the Government, accepted that in these circumstances it should be a subjective test.
Is it really the case that three days later to make the unfortunate defendant the subject of an objective test is a matter to which the Government would wish to lend their support? I do not think it is. If any of my noble friends behind me asks what is wrong with the phrase "reasonable cause", I would say that it is implicit in the defence—and we had plenty of instances of this in the various rape cases earlier this year—that the belief must be a reasonable one, and that is a matter of fact for the magistrates to take into account when they decide the issue. I do not think that there would be anything between us on that point. That is my second objection to Amendment No. 11, and indeed to Clause 4 as it would stand amended by these three Amendments.
Returning to a point raised by the noble Viscount, I should like to ask: how could somebody in hot pursuit of a deer prove to the satisfaction of a magistrates' court before which he appeared, that merely 302 because he had wounded a deer and pursued it over a boundary he had reasonable cause to believe that the person or persons entitled to consent to the act would have consented thereto? The noble Lord, Lord Northfield, shakes his head. He might say, " I thought my next-door neighbour was a reasonable bloke and would not object"; but I do not think that that is a proper test, and it certainly does not satisfy Amendment No. 11, however much the noble Lord would like to think that it does.
Finally, I would doubt whether in fact these Amendments, particularly Amendment No. 11, would give any proper protection to people who follow stag-hounds if they found themselves in the position in which, on Second Reading, I suggested they might—and it may be helpful if I recapitulate. In passing, may I say that whatever discussions the noble Lord, Lord Northfield, has had with various pressure groups or bodies, he has not had any with me. I do not blame him for that. I do not appear on behalf of any organisation. I do not represent either the British Field Sports Society or anybody else; I speak for myself. The example which I postulated was this, that if, in pursuit of the deer, stag-hounds found themselves on the edge of a small town, where they normally do not go, and a number of the hunt followers in fact strayed on to, let us suggest, a smallholding, what defence would they have to a prosecution which might well be privately brought under Clause 4? The answer, of course, was, "None". Do they get any defence under Amendment No. 11? I fear that, again, the answer must be, "No", because how could somebody who strayed on to a smallholding 30 miles from where he lives say, "I had reasonable cause to believe that the smallholder would not have objected"? He has no reasonable cause at all; he has not even an unreasonable cause.
In those circumstances, I should hate (because I believe in this Bill) to vote down Clause 4. I think that would be an unkind thing to do, and I say that in its widest sense. Is it possible, one asks the noble Lord, to withdraw these Amendments, to leave Clause 4 as it is for now and for us to have a little legal conversation on this before Report stage to see whether we cannot tidy it up?
§ 4.53 p.m.
§ Viscount THURSO
I should like to support what the noble Earl, Lord Mansfield, has said. I think that I should find these Amendments of the noble Lord, Lord Northfield, very difficult to accept as fulfilling the conditions that I was trying to cover in my Amendment. I should also like to suggest to the noble Lord, Lord Wells-Pestell, that he considers what is meant by the first sentence of the Explanatory Memorandum of the Bill; viz., that—The main purpose of the Bill is to improve the management of deer —The management of deer is carried out by the control of the deer herd, and the deer herd is controlled by appropriate culling. Appropriate culling can be done only by somebody who is concerning themselves with knowing the numbers and herd shape of the deer herd within an area. This is not ever the concern of the poacher; and I feel that, if you are going to maintain proper management, you have got to show that you are putting management clearly into somebody's hands—and the appropriate hands, I think we have all thought, are those of the owner of the land.
I think we have then to give the owner of the land, upon whom we are going to place the burden of responsibility for management, some protection against somebody coming upon his land indiscriminately and, by any legal method or not, affecting the process of management which he is trying to carry out upon that land. I think the noble Lord, Lord Northfield, is right when he says that he needs a Clause 4, and I think the noble Earl, Lord Mansfield, is right when he says that we need a Clause 4. We do not necessarily need it as it is drafted in the Bill, and I certainly do not think that the Amendments improve it all that much.
I should like to say one thing relative to stag-hunting, for which I hold no greater brief than the noble Lord, Lord Wells-Pestell, and upon which I, too, reserve my judgment. Stag hunters can perfectly well obtain their clearance to enter upon land by arranging permission from owners of land wherever they go, and I do not see why this should not be done. It may well be impossible to do this; I do not know. But there is a problem here, and I think the problem should be solved, if possible, 304 by the withdrawal of these Amendments and by all those interested trying to get together in order, at the Report stage, to come up with something better than the present Clause 4, at this stage leaving Clause 4 to stand part of the Bill.
Lord DE CLIFFORD
Before the noble Lord, Lord Northfield, replies, may I join my noble friend Lord Mansfield. I, too, am not a follower of stag-hunting; I would not take part in it myself, but I should not like to see it prohibited. I think we do not want to interfere with people. But it has been brought to my attention that there are people poised with this clause in its present shape in their hands who would be well prepared to make a very good legal battle out of it. I think my noble friend Lord Mansfield is quite correct, and that one does not want to put oneself in the position of opening up to lawyers a field of approach in trying to stop something being carried out by a minority which the majority probably does not want to stop. I think it is quite wrong to put people at risk through a clause like this. I read the clause without having a legal mind, and I have come to exactly the same conclusion as my noble friend Lord Mansfield.
§ Baroness HYLTON-FOSTER
May I raise a slightly different point. I have a worry that it is not going to be possible to enforce the prohibition on poaching in places like the Home Counties and other parts of the country where there is (shall I put it this way?) an infestation of roe deer. I know we have been talking about the red deer, but the roe deer are a very real worry because they are enormously on the increase, and it is not always possible for those who can shoot them, such as the Deer Society, who are a very great help, to do so. That is because there are so many of the deer and they are so tame that they wander off into the villages and into the outskirts of towns, into the allotments, and they take their pick, not only of the roses, or whatever they like, but also of the choice vegetables. They really are an enormous worry to the ordinary householder, as well as to the farmer. I do not think that the licensing of shops for the sale of venison will make much difference, because it is quite easy to pop a deer in your deep-freeze; and, particularly in the South, the object of 305 killing them is not always for sale, but to prevent the vegetation from being eaten. I wonder whether we ought not to consider that there should be very much more attention paid to the culling of roe deer before we think we can enforce this new provision.
§ Lord BURTON
Not to accept the principle of this clause would mean that a coach and horses could be driven through the principles of the Bill. I think most of your Lordships who have spoken, if not all, have been in favour of some clause with this sort of principle in it. The possible exception is the Minister, and I noticed that when the Minister spoke he said that they were not necessarily his views, they were the views of the Government. So it is possible that it is the unanimous view of your Lordships that something of this nature should be in the Bill. The Minister also said that the Government could not accept a clause such as this unless the case for doing so was really strong. My understanding is that a very strong case has been made out, and that an enormous amount of evidence has been produced to the Government showing the need for this clause. Indeed, in moving his Amendment, the noble Lord said that it had the utmost support from the police. If they feel that it is necessary, how is it that the Government turn round and say that it is not necessary? It does not seem to make sense.
I should like briefly to mention another thing, the question of hounds. There are some dogs which can be termed hounds, such as beagles and dachshunds which are used legitimately to move deer, and particularly the females, in the dark winter months so that they can be properly shot with rifles when they go into the open. If you are going to ban dogs, then you are going to ban this sensible and reasonable method of culling deer. Apart from what my noble friend said about the question of deer hounds, there was the question also of animals crossing the estate boundary. I am not sure what the law is on this, but I know that it is a general principle in England, Wales and Scotland that if you wound a creature you can cross the boundary to collect it. A number of your Lordships will have put some game bird over the boundary and will have gone to collect it. I cannot 306 see that there is a great difference between going to collect a wounded pheasant or partridge and collecting a wounded deer.
I know that there was some objection to the clause as it stands in the Bill, but it seems to me that Lord Northfield's Amendments, even if they are not perfect, go, at least some way, to improve it. I think that my noble friend Lord Mansfield's point about "person or persons entitled to consent" in Amendment No. 11 may want further amendment; but I should have thought that the Amendments as drafted by the noble Lord, Lord Northfield, improve the clause and we ought to accept them and then go ahead at the Report stage to make amendments to anything else which is required to make it good law.
§ Lord NORTHFIELD
I am grateful for the temper of the debate. I should be hypocritical if I were to say that I was grateful to my noble friend for his remarks. I disapprove of them strongly and I believe that they are one more piece of evidence that on this matter of the reform of legislation dealing with animals, the Home Office, which mainly dictates these matters, is reactionary to a degree that I hesitate to put into the appropriate words. This has been proved so many times in the last 50 years that I am sorry that we must still go on saying it and finding the Home Office unmoved by our protests at the way it "lives in the last century" or whatever century it is that it lives in.
On this matter, let me deal first with the prime problem as I see it. It comes from my attempts to meet the British Field Sports Society's views. This is the great trouble. I tried to reach agreement in order that no one can complain that Clause 4 will harm stag hunting and I seem to have let myself into very hot water as a result of it. That is rather sad. It proves that one can be too amenable. I would say to the noble Earl, Lord Mansfield, whose intervention I welcomed and found helpful, that if he feels that the Amendments as drafted mean that stag hunts must in future try to limit themselves to areas over which they have permission, he may well be right. But in accepting these Amendments as drafted, I suspect that the British Field Sports Society accepted that point: that there 307 was a limit to the extent to which they could get both things: a laudable objective and an absolutely free run for stag hunting. They realised, therefore, that this was worth while.
§ The Earl of MANSFIELD
Can the noble Lord accept that I have nothing to do with the British Field Sports Society? They have their own good reasons for agreeing or disagreeing with the noble Lord, Lord Northfield. All that I am saying is that if anybody, whether the British Field Sports Society or anybody else, thinks that stag hunting is going to be legally safe (if I may put it that way) as a result of Clause 4 or of the Amendments to it, they are in my opinion wrong. But I have nothing to do with the British Field Sports Society.
§ Lord NORTHFIELD
I was not saying that the noble Earl had anything to do with the Society. They must have taken into account the point that he is making in signifying their acceptance of this wording. I think that that is a matter for them. I do not think it is up to us to over-protect them if they are satisfied with the wording on the Marshalled List.
We now come to the main point raised by my noble friend. The difficulty I am in is this. If I withdraw these Amendments—and I think I have little alternative but to do so—and if I then, as I should be delighted to do, consult with the noble Earl, Lord Mansfield, to get a more watertight Amendment that satisfies all the legal requirements or whatever other point he raised; and I accept the point about the onus of defence and so on, the net result will still be that my noble friend will get up at Report and move the deletion of the whole clause. He does not want a clause against poaching. His reactionary remarks were not directed to the drafting of this clause but to the principle of it. He does not want a new clause, breaking new ground, in our Statutes that goes so far as to outlaw poaching.
This is the burden of the complaint of the Home Office: that they do not want this new offence to be created. The difficulty is that at Report stage we shall have to face the fact (where I hope noble Lord will support me) that if we get to 308 what is a satisfactorily drafted clause—and I will do my best to reach that point with the generous offer of the noble Earl, Lord Mansfield, to help me—I hope that, after that, we shall all unite and vote down the Government and show them on this matter that we will not have them dictate to us on a matter of cruelty to animals which is so clearly proved in the statistics and in the remarks of all noble Lords at Second Reading.
What my noble friend will not accept is that this business of poaching has reached such proportions (as was said in the police letter) that it is now becoming an abuse that must be remedied by straightforward powers of the police to intercept people illegally going on to and leaving land as the only strong way of achieving the prohibition of this abuse. And it is more than that; because, as I said on Second Reading, the abuse has got so far that there are threats to the police as a result of this undesirable activity. It has got to the point where, with a dead animal worth £150, gamekeepers are being threatened and beaten up; and if my noble friend asks: "What is the overwhelming case for a prohibition of poaching on these lines?", what more does he want? We have now got poaching to the degree of being a highly-organised business, of being immensely cruel, of being unable to be detected and satisfactorily controlled by the police because they say that they cannot intercept people and ask: "Where have you come from; where are you going to; what are you doing on that land?—and they have a power behind them in the Bill.
I cannot give him any more evidence than that, except to bring him, if he wishes, all the hundreds of cases that I refrained from reading out at Second Reading. If we come to it at Report stage, I will spend half the night reading them out to my noble friend to prove that there is an abuse, and to prove that it is so overwhelming that it is time to break new ground and to create an offence of poaching.
In response to the overtures from the other side of the Committee, and particularly in response to the very generous offer of the noble Earl, Lord Mansfield, I will gladly withdraw my Amendment No. 9 and not move Amendments Nos. 10 and 11. But I hope that noble Lords will 309 support me at the Report stage in closing down the reactionary views of the Government on this matter.
§ Lord WELLS-PESTELL
I was going to say, "Before my noble friend sits down", but that is a meaningless phrase, as everyone knows. I will make this one point. It is the duty of a Government in a Private Member's Bill to be in a position to advise and to guide your Lordships. That does not mean that you have got to accept the advice and the guidance which is given. There is a duty—let us be fair about this—on the Government to be in a position to give what help and advice your Lordships may need. This has been going on for a good many years. Having given that help, it is for your Lordships to make up your minds—and your Lordships frequently fail to take the advice of the Government.
§ Amendment, by leave, withdrawn,