§ 6.8 p.m.
§ Read a third time.
§ Clause 1 [Dogs bred for fighting]:
§ Lord Monson moved Amendment No. 1:
Page 1, line 22, at end insert:
'(f) keep such a dog unless there is in force in relation to the keeping of the dog by that person a policy of insurance providing cover against third-party risks.").
§ The noble Lord said: My Lords, as Amendment No. 2 is consequential upon Amendment No. 1, I shall speak to them both at the same time. The first thing that needs to be said is that this is not a re-run of the debate we had last Thursday at Report stage. Last Thursday the noble Earl, Lord Ferrers, assured the House that Clause I dogs—to use a convenient piece of shorthand—that is to say, fighting dogs, would definitely be covered by compulsory third party insurance, albeit not until 30th November and even though that would not be written into the Bill. We accept those assurances unreservedly. I still feel that it would give more effective protection to the public if compulsory third party insurance could be in place rather sooner than 30th November, which should not be difficult given that the business section of the Sunday Telegraph has revealed that it will cost no more than £10 per annum to insure even the most dangerous breed of dog against third party risks. However, that is not the real purpose of the amendments before the House today.
§ The essential purpose of the two amendments is to make it possible for this Government, or any future government, to extend the principle of compulsory third party insurance to what we must call Clause 2 dogs, by which I mean, in the words of the Bill, "specially dangerous dogs" which do not fall into the category of fighting dogs. Unless that is done there will be a great gap in the protection which is ostensibly afforded to the public under the provisions of Clause 2. Of course it will help—I do not deny it—that dogs designated as specially dangerous under Clause 2 will be required to be muzzled and kept on a lead when in a public place, but it will not realistically succeed in preventing all serious attacks by such dogs on innocent men, women and children, in respect of which they risk receiving not a single penny in compensation unless the owner of the dog happens to be will off. Acceptance of the two amendments would remedy that defect.
§ Having said that, I must point out that these are essentially enabling amendments. They would not compel the Secretary of State to do anything that he was not going to do already. Yes, indeed, they would oblige the Secretary of State by statute to require Clause I dogs to be compulsorily insured, but we already know from the statement last Thursday of the noble Earl, Lord Ferrers, that he is going to do that anyway. There is no change there.
§ So far as concerns Clause 2 dogs, the present Secretary of State or a future Secretary of State will still have complete discretion as to whether to make use of the powers the amendments would confer on 702 him. Should the Secretary of State feel it right to do so, the mechanism will be all in place, without any need for delay. However, if by some misfortune the amendment is rejected and it is subsequently found that a particular breed of dog—a non-fighting dog —turns out to be very much more dangerous than was previously imagined, it will be too late. New primary legislation will be required—time consuming, controversial primary legislation—dealing with dangerous dogs. I cannot believe that either the Government or the Opposition would welcome that. I beg to move.
§ 6.15 p.m.
§ Lord Richard
My Lords, in a sense, the thrust of the two amendments in the name of the noble Lord, Lord Monson, and of Amendment No. 3 standing in my name is the same. I refer to the relationship between the two methods of giving compensation to people who have been injured and their relationship with various clauses in the Bill.
Perhaps I may set out the matter in this way. The amendment moved by the noble Lord, Lord Monson, applies to Clause I dogs. Those are fighting or prohibited dogs, whatever phrase one likes to use. As I understand it, the Government are saying that the amendment is unnecessary because in the scheme to be introduced under Clause I they will ensure that anyone who is allowed to keep a pit bull terrier will have to make sure that it is covered by a policy of insurance providing cover against third party risks. So far, so good. We then come to what I shall call Clause 2 dogs. Those are other specially dangerous dogs, to which, if the Government decide to do so, they can apply some of the restrictions set out in Clause 1. I refer in particular to the muzzling requirement and the necessity for keeping a dog on a lead.
At the moment someone injured by one of those dogs is without a claim for compensation. He may be able to go against the owner if he can prove that the owner has in some way been negligent. However, unless he can find the owner, or unless the owner has been negligent, or indeed unless the owner has means with which to pay, there will be no compensation. Can the Government give an assurance that, if they extend the provisions of Clause 1 via the operation of Clause 2 to another type of dog, they will include the same prohibition against keeping a dog without third party insurance, which at the moment applies only to prohibited dogs? If they extend the Clause 1 prohibitions, or some of them, to Clause 2 dogs, can we have an assurance that there will be a necessity for a policy of insurance providing cover against third party risks?
That brings us to Clause 3 dogs, if I may put it that way—dogs that are dangerously out of control in a public place. In relation to such dogs, unless, first, one can find the owner, and, secondly, the owner has some money, there is no way in which someone can get compensation for what might turn out to be very serious injuries. Although we are not discussing at this stage the amendment standing in my name, perhaps I may point out that it is designed to fill precisely that gap. In other words, unless we get to the stage where 703 there has to be a compulsory insurance policy, rather like motor insurance, for all dogs—Clause 1 dogs, Clause 2 dogs, Clause 3 dogs, and indeed dogs which are not dangerously out of control; dogs which are not covered by the Bill—we shall see a continuation of what happens at present whereby someone who is injured finds great difficulty in getting compensation. That is the purpose of my amendment. It requires that people who suffer such injuries should be eligible for compensation from the Criminal, Injuries Compensation Board.
I know that we are not discussing Amendment No. 3 at this stage but it is important, in considering the merits or otherwise of the amendment moved by the noble Lord, Lord Monson, to bear in mind that his amendment taken with my amendment would provide a structure by which most people who are injured as a result of dogs being out of control can receive compensation. I ask the Minister again whether he can give us an assurance that, if some of the prohibitions in Clause 1 are extended to Clause 2 dogs, the necessity for third party insurance will go with it.
The Viscount of Falkland
My Lords, I support the amendment moved by the noble Lord, Lord Monson. It is somewhat of a fall-back situation for me because I moved an amendment at a previous stage dealing with strict liability. I withdrew the amendment because I agreed with the noble Earl the Minister that the whole question of liability was too complex to be dealt with in this quite simple Bill.
If one is bitten by a dog—whether it be a Clause I, a Clause 2 or a Clause 3 dog—it is an unpleasant experience. I was discussing it with some friends from another country who came to your Lordships' House for dinner with me. They were wide-eyed with amazement when I tried to explain to them as succinctly as I could, although I was tired after so many debates on dogs, exactly what the situation is in this country if one is unfortunate enough to be bitten by a dog. I tried to explain the first bite concept and other arcane matters which had arisen during the proceedings on the Bill. The fact remains that if one is bitten by a dog one has precious little chance of compensation as the law stands at the moment. One is more likely to be bitten—I shall probably go out now and be bitten by a Clause 1 dog—by a Clause 2 dog or a Clause 3 dog. Clause 2 dogs, as any dog warden will testify, are the Dobermann, the German shepherd and the Rottweiler.
Those are the dogs which cause the most trouble in the areas which have many problems with dogs. Let us take, for example, Bradford. I talked to the dog warden in that area at some length on the telephone. If you are bitten by one of the three Clause 2 dogs, you will suffer and you may incur expense. Moreover, it will be extremely difficult to get redress against the owner of the dog—that is, if you can find the owner. It will be difficult to do so because we do not have a dog registration scheme. I am sure that the Government are bored to tears with my continual reference to the necessity for such a scheme. But a dog registration scheme would cure many of the ills which we have as regards dogs.
704 The simple amendment of the noble Lord, Lord Monson, at least makes it possible, if it is imposed upon owners and if it should become necessary, to have third party cover. It goes only a small way towards meeting the problem. However, I have to support it until such time as we have proper legislation in this country to cover those who suffer expense or injury as a result of an attack by a dog. Unfortunately, such attacks are becoming more and more frequent.
My Lords, at each of the various stages of this Bill in your Lordships' House we have raised and debated the question of insurance. We have explained our position as fully as we are able. The Government support the need for compulsory insurance for dogs covered by Clause 1 and have already made clear their intention to make this an integral part of the scheme which is made by order. We have always been definite about that and your Lordships' House has always welcomed it. On the face of it, therefore, we would have no objection to accepting this amendment to Clause 1(2).
However, as the noble Lord, Lord Richard, made clear these amendments are not really about Clause 1; they are about Clause 2. By inserting a requirement for insurance into Clause 1, the scope of Clause 2 is automatically extended to be able to cover compulsory insurance for any dogs which are specified under an order under Clause 2.
We have already explained to the House why the Government do not wish to go along this route. There is an inevitable tension in Clause 2 between those who appreciate the need for the additional powers which it gives to the Secretary of State and those who would rather the Secretary of State did not have such powers, even though they are reserve powers, curtailed by specific consultation and the need for the agreement of both Houses by affirmative resolution. We have attempted to strike the right balance. We think that the balance is right and that to add this apparently minor addition to Clause I would upset that balance. It is as simple as that.
Clause 2 cannot be used to put a ban on existing breeds of dog. It is for the better control of dogs of a type which appear to have become especially dangerous. There would need to be serious circumstances for the Secretary of State to have to act to cause an existing breed of dog to be muzzled and on a lead in public. We feel that Parliament has judged that this is as far as it wants the Clause 2 powers to go. That is why we cannot accept the additional insurance requirement, which, by implication, is transferred to Clause 2.
As I have consistently told your Lordships' House, insurance and civil liability are complicated matters which are not well suited to a Bill of this kind. We have met the requirement for compulsory insurance for the very small number of Clause 1 "fighting" dogs by making it part of the exemption scheme. But many people would be worried by the possibility of such a requirement being applied in the case of any Clause 2 dogs. We do not wish to extend the scope of Clause 2 any further. Therefore, I ask your Lordships not to accept the amendment.
§ Baroness Seear
My Lords, I wonder whether the noble Viscount can clarify something which very much puzzles me. I understand—and my noble friend has just confirmed this—that a dog is allowed one bite; in other words, it is allowed one bite and it will get a way with it. When one is bitten, how is one to know whether the dog has already had its one bite? If it is not registered, and no one has reported the incident, the dog is not going to admit it. I repeat, how are we to know?
My Lords, I am a little unclear about the noble Baroness's question as to whether a dog bites once or twice, or, indeed, how you know whether a do g has bitten someone before it bites you. It is a separate matter which is perhaps relevant to some degree. But at this stage I am not entirely sure to which of the arguments it applies. I can only say that that issue does not affect the argument that I was trying to put forward on insurance in respect of Clause 2 dogs.
§ Lord Richard
My Lords, perhaps I may help the noble Viscount. As I understand it, the dog would not be registered but the bite would be. In other words, if a dog has had a bite and has been brought before a court, the incident will be entered on the dog's record. If the dog then has a second bite, it will be a "second biting dog" and not a "first biting dog". Therefore, the bite would be registered in the court but not the dog.
My Lords, I believe that we are getting very close to the stage where dog bites man and man bites dog. However, luckily we have not gone into such arguments so far on this Bill. The one bite rule stems from the Animals Act 1971 which deals with the issue of whether the owner reasonably expected that the dog was liable to bite. One needs one bite to take place before an owner could expect that.
§ Lord Campbell of Alloway
My Lords, if a dog has had one bite and is not brought to court, how does it get on the record?
§ Lord Richard
My Lords, surely there is a presumption of innocence in respect of dogs just as there is in respect of humans.
§ Lord Monson
My Lords, I am most grateful to the noble Lord, Lord Richard, and the noble Viscount, Lord Falkland, for their support. The noble Viscount set out the case especially well. However, I cannot say the same for the response of the noble Viscount, Lord Astor. He is perfectly right to say that the amendments are not really about Clause I and that they are essentially about Clause 2. That is the whole purpose of them and there is no question about that.
However, the noble Viscount said, most curiously, that Parliament has decided how far,it wants the Clause 2 powers to go".To paraphrase his remarks, he said that Parliament did not want them to go any further. But Parliament has not had much of a chance to discuss the matter. The Bill was rushed through the other place in no time at all. I do not believe that there was any time to discuss insurance. Moreover, your Lordships' House has riot had the chance to discuss Clause 2 dogs 706 specifically. It has discussed insurance for all dogs, but I accept that the government will not agree to that proposition: I am not trying to push that argument. I am simply trying to extend the clause to give the Secretary of State the possibility—not an obligation—to extend compulsory insurance from Clause I dogs to Clause 2 dogs. It does not impose any obligations upon him. It is an enabling amendment; it is permissive.
As the noble Viscount agreed, they are reserve powers and would have to be approved by affirmative resolution of both Houses of Parliament. Therefore, if anyone seriously objects to such powers being put into use there are plenty of minefields in the way which could ensure that they will not come into force. No one seriously thinks that they will necessarily be used, but they ought to be held in reserve in case what the Bill refers to as a "specially dangerous dog" comes to light; for example, a breed hitherto not suspected of being especially dangerous.
There have been many jokes and references to old proverbs about dogs having one bite and so on. Of course sometimes it is a joking matter: one thinks, for example, about a postman being nipped on the ankle. It may not he amusing for the postman but it is not unreasonable for other people to joke about such incidents. However, I am not talking about that minor sort of thing; I am talking about people who are seriously injured, who have had their features disfigured, or their limbs, their sight or whatever else damaged by dogs. Unless these amendments are agreed to, there is a possibility that innocent men, women or children will not receive the substantial compensation to which, I submit, they are morally entitled. I cannot let the matter rest.
My Lords, before the noble Lord concludes his remarks, he mentioned again new breeds of dangerous fighting dogs. Perhaps I may remind him that under Clause 1(1) (c) the Secretary of State must have regard to the dog in question,being a type appearing to him to be bred for fighting or to have the characteristics of a type bred for that purpose".If the dog qualified under paragraph (c), it would become a Clause 1 dog.
§ Lord Monson
My Lords, I am grateful to the Minister. I obviously did not make myself clear to him. I was not talking about new breeds of fighting dogs—I accept what he has just said. I am talking about dogs which are not fighting dogs but whose especially dangerous characteristics have not yet become evident. Those dogs can never be covered by Clause 1 because they are not fighting dogs. Nevertheless, they fall into the category covered by Clause 2. Those dogs are potentially the Rottweilers or Dobermanns, which can cause serious injuries. Parliament has not had a chance to consider the matter: the Minister did not give a fair summary of the situation. The other place might well be delighted to have the amendments to consider. They can always reject them. Therefore I feel that I must test the opinion of the House.
§ 630 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 56; Not-Contents, 109.708
|Airedale, L.||Kinless, Ly.|
|Bark, B.||Kirkhill, L.|
|Bledsoe, V.||Lockwood, B.|
|Boston of Faversham, L.||Mackie of Benshie, L.|
|Carmichael of Kelvingrove, L.||Masham of Ilton, B.|
|Cocks of Hartcliffe, L.||Milner of Leeds, L.|
|Colwyn, L.||Molloy, L.|
|Craigavon, V.||Monson, L. [Teller.]|
|Darcy (de Knayth), B.||Nicol, B.|
|David, B.||Phillips, B.|
|Desai, L.||Pitt of Hampstead, L.|
|Dean of Beswick, L.||Prys-Davies, L.|
|Dormand of Easington, L.||Richard, L.|
|Ennals, L.||Seear, B.|
|Falkland, V. [Teller.]||Shackleton, L.|
|Gallacher, L.||Stoddart of Swindon, L.|
|Galpern, L.||Swinfen, L.|
|Glenamara, L.||Taylor of Blackburn, L.|
|Graham of Edmonton, L.||Taylor of Gryfe, L.|
|Greenway, L.||Tenby, V.|
|Grey, E.||Tordoff, L.|
|Hampton, L.||Underhill, L.|
|Harrowby, E.||Whaddon, L.|
|Hilton of Eggardon, B.||Wharton, B.|
|Hollick, L.||Wigoder, L.|
|Howie of Troon, L.||Williams of Elvel, L.|
|Jenkins of Hillhead, L.||Wilson of Langside, L.|
|Kilbracken, L.||Winstanley, L.|
|Alport, L.||Grimond, L.|
|Ampthill, L.||Grimston of Westbury, L.|
|Arran, E.||Hardinge of Penshurst, L.|
|Astor, V.||Harmar-Nicholls, L.|
|Auckland, L.||Harmsworth, L.|
|Barber, L.||Harvington, L.|
|Beloff, L.||Hemphill, L.|
|Belstead, L.||Henley, L.|
|Blatch, B.||Holderness, L.|
|Blyth, L.||Hooper, B.|
|Boardman, L.||Hothfield, L.|
|Boyd-Carpenter, L.||Howe, E.|
|Brabazon of Tara, L.||Hylton-Foster, B.|
|Brigstocke, B.||Jenkin of Roding, L.|
|Brougham and Vaux, L.||Johnston of Rockport, L.|
|Campbell of Alloway, L.||Joseph, L.|
|Campbell of Croy, L.||Kimball, L.|
|Carnock, L.||Kinnoull, E.|
|Cavendish of Furness, L. [Teller.]||Kitchener, E.|
|Lane of Horsell, L.|
|Clanwilliam, E.||Lauderdale, E.|
|Cochrane of Cults, L.||Lindsey and Abingdon, E.|
|Colnbrook, L.||Long, V.|
|Constantine of Stanmore, L.||Lucas of Chilworth, L.|
|Cork and Orrery, E.||McColl of Dulwich, L.|
|Crathorne, L.||McIntosh of Haringey, L.|
|Crickhowell, L.||Mackay of Clashfern, L.|
|Davidson, V. [Teller.]||Macleod of Borve, B.|
|Denton of Wakefield, B.||Massereene and Ferrard, V.|
|Downshire, M.||Merrivale, L.|
|Elles, B.||Mersey, V.|
|Elliot of Harwood, B.||Milverton, L.|
|Elliott of Morpeth, L.||Monk Bretton, L.|
|Elton, L.||Montgomery of Alamein, V.|
|Fanshawe of Richmond, L.||Mottistone, L.|
|Ferrers, E.||Mountevans, L.|
|Flather, B.||Munster, E.|
|Fortescue, E.||Murton of Lindisfarne, L.|
|Fraser of Carmyllie, L.||Nelson, E.|
|Gisborough, L.||Nugent of Guildford, L.|
|Glenarthur, L.||O'Cathain, B.|
|Orr-Ewing, L.||Stockton, E.|
|Pender, L.||Stodart of Leaston, L.|
|Platt of Writtle, B.||Strathclyde, L.|
|Rankeillour, L.||Strathmore and Kinghorne, E.|
|Reay, L.||Suffield, L.|
|Rees, L.||Tranmire, L.|
|Renfrew of Kaimsthorn, L.||Trumpington, B.|
|Renton, L.||Ullswater, V.|
|Renwick, L.||Vinson, L.|
|Rippon of Hexham, L.||Waddington, L.|
|Rochdale, V.||Wade of Chorlton, L.|
|Savile, L.||Windlesham, L.|
|Sharpies, B.||Wise, L.|
|Soulsby of Swaffham Prior, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 2 [Other specially dangerous dogs]:
§ [Amendment No. 2 not moved.]
§ 6.39 p.m.
§ After Clause 3, insert the following new clause:
§ ("Right to claim compensation
§ . Persons who suffer injury from dogs dangerously out of control, whether in a public place or elsewhere, and whose injuries are attested to by a general medical practitioner or other suitably qualified medical person, and a police officer, shall where the owner of such a dog cannot be identified or traced, be eligible for compensation upon application to the Criminal Injuries Compensation Board in respect of such injuries.").
§ The noble Lord said: My Lords, in view of the debate we had on the previous amendment, I do not move the amendment.
§ [Amendment No. 3 not moved.]
§ [Amendment No. 4 not moved.]
§ Clause 5 [Seizure, entry of premises and evidence]:
Lord Campbell of Alloway moved Amendment No. 5:
Page 6, line 29, at beginning insert ("(a)").
§ The noble Lord said: My Lords, in moving Amendment No. 5 I shall speak, if I may, to Amendments Nos. 6, 7 and 9, also in my name, since they stand or fall together. As your Lordships may have observed, Amendment No. 9 appears to be in the name of my noble friend Lord Ferrers, but it is not. A correction slip has been produced from the Printed Paper Office which makes clear that it is in the names of myself, my noble friend Lord Renton and the noble Lord, Lord Airedale.
§ As the Bill stands, the accused may be convicted, on the word of the Secretary of State, of an absolute offence related to certain types of prohibited dog without production of a veterinary certificate which certifies that the dog is a prohibited dog. By concession, problems of definition of type of dog are bound to arise. The proposed regime appears to be oppressive and unjust.
§ The initiative of the Government to deal with a matter of urgent and serious concern is welcome, but there must be fair play for the accused. The object of the amendment is to introduce an essential measure of safeguard for a fair trial. My noble friend the Minister and I start on common ground. He said that we all shared the obvious anxiety behind the amendment that the trial should be as fair as possible to those accused of the criminal offence under Part I of the Bill.709
§ These are offences in which knowledge, suspicion or the state of mind of the accused are totally irrelevant. It is sometimes called by lawyers the absolute offence. (e). There are five offences for certain types of dog. The matter is important because we are not just dealing with pit bull terriers. The types are: the pit bull terrier, the Tosa, the dog bred for fighting, two more from South America, and also dogs having the characteristics of a type bred for fighting.
§ Under Clause 2(1), an absolute offence under Clause 1(2) (d) and (e) arises and two offences arise for another type of dog. That is the specially dangerous dog. It is the Secretary of State who decides whether a dog is of a type bred for fighting or has the characteristics of a dog bred for fighting or is a specially dangerous dog. If it is alleged by the prosecution that the dog is a dog to which Clauses 1 or 2 apply, it is to be presumed that the dog is such a dog unless the accused proves otherwise.
§ This presumption applies again to the pit bull terriers, Tosas and dogs which appear to the Secretary of State to be bred for fighting, or to have the characteristics of a type bred for fighting or to be specially dangerous dogs.
§ At Report stage, my noble friend the Minister seemed to think that the effect of the amendment which is only to require a veterinary certificate identifying the type of dog it is, in order to enable the presumption to operate—shifted the burden of proof back to the Crown. However, the noble Lord, Lord Richard, rightly pointed out that it does no such thing. It does not shift the burden at all. It merely requires the Crown to produce the veterinary certificate.
§ As the Minister said, if there is no precise way of defining a pit bull terrier, is there any precise way of defining any of the other categories of dog? The say-so of the Secretary of State is no substitute for a definition in criminal proceedings. Resort to this presumption without the amendment adding the veterinary certificate could work most oppressively and be unjust. If my noble friend the Minister says —as he did—that there is no precise, scientific way of defining a pit bull terrier in law, how is it that he can inform the House—as he did in a letter in my possession—that the British Veterinary Association has bold us that there should be very little difficulty in proving that a dog is not a pit bull terrier? I have never heard such an argument before to justify a presumption to reverse the burden of proof.
§ It seems to be conceded that there are difficulties of definition. All I ask is that the prosecution may not rely on the statutory presumption to obtain a conviction unless the presumption is supported by a veterinary certificate. We are concerned with dogs which appear to the Secretary of State to be within five different categories.
§ With an absolute offence I cannot accept that the accused should be liable to be convicted in this way unless the offence is proved. The importance of the veterinary certificate is that it lets the accused know the case he has to meet. It informs him of the type of dog, the category of dog, the characteristics. Thus, 710 knowing the case he has to meet, he can seek advice from his own vet. If the vet says that the Crown is perfectly right, in 99 cases out of 100 there will be no contest.
§ Apart from anything else, it seems to me that the minimum requirement of natural justice which is established throughout the common law is that a man must know the substance of the case which he has to meet. It seems a little strange that we should introduce into our criminal law a statutory presumption that rides counter to the fundamental concept of natural justice.
§ For those reasons, I have maintained my stand on the matter. I know that it is a small matter looked at from one viewpoint, but it is not so small looked at from the point of view of the accused. I see in it the seeds of serious injustice. I beg to move.
§ Lord Airedale
My Lords, when I take part in debates of this kind I like to mention first that with a name like mine I ought to know something about the subject. Surely, subsection (5), which we are dealing with, is unsatisfactory in the way that it is drafted as it will lead the prosecution to say, "When in doubt, prosecute" because the burden of proof to prove the negative is upon the accused.
I am not suggesting that prosecutors act irresponsibly, but in a case of considerable doubt the temptation on the prosecution will be to prosecute and let the accused do the work of showing—if he can—that the prosecution is wrong and that the dog in question is not one of the dogs referred to in the Bill. It would be very bad for prosecutors to fall into the habit of prosecuting in doubtful cases when it is up to the accused to do the work. Our amendment is a great improvement.
§ Lord Renton
My Lords, I wish to support the amendment of my noble friend Lord Campbell of Alloway. We really should think hard before changing the burden of proof in criminal cases. It is one of the most fundamental principles of our criminal law that a man is innocent until he is proved guilty by the Crown. But there are examples in our law of the shifting of the burden of proof. There have always been very strong reasons for doing so, and generally some good safeguards.
My noble friend Lord Campbell of Alloway has not entirely shifted the burden of proof. He has, however, introduced safeguards which I must say I would regard as the minimum in order to secure justice and a fair trial. Frankly, there is not a great gulf between the Government and my noble friend. Both are saying that there should be something produced at least 14 days before the hearing. In the clause as originally drafted, it was 21 days. My noble friend Lord Ferrers will have his period of 21 days reduced to 14.
I hope that my noble friend Lord Ferrers will either say that he accepts my noble friend's amendment or that he can give an undertaking, although that may not now be possible, the Bill having already gone through the Commons. This is therefore our last opportunity; the amendment has to be made now. It would be too late to leave it simply to he dealt with in the Commons as a result of an undertaking. So we 711 have no alternative but to press my noble friend Lord Ferrers who has conducted this difficult Bill with great understanding and patience. I shall be very disappointed if we cannot reach an agreement.
§ Lord Houghton of Sowerby
My Lords, I support the amendment. However, I am sorry that it occurs so late in the progress of the Bill through your Lordships' House as to put it in danger of being overruled because we are so close to the end of the Government's timetable on the Bill. However, I hope I am mistaken in believing that this is the first time in the long proceedings in your Lordships' House on this Bill that attention has really been given to the injustice of the measure as regards dog owners. The whole emphasis of the debates has been to strengthen the bias against the dog owner and to fortify the position of the private citizen who may suffer injury at the hands of one of the dogs we are discussing. The risk of such injury is small but, of course, such injury matters a great deal to an individual who suffers it. Nevertheless, this is an unjust Bill from the point of view of dog owners. Little consideration has been shown to their position in a Bill which was introduced in another place only in the first few days of June but which had completed all its stages there by 10th June. All stages were completed during a day and a night on 10th June. The Bill was finally completed at 3.30 in the morning.
The legislation affects the rights of the citizen. In my opinion such rapid treatment of legislation imperils the right of Parliament to say that it has legislative authority in its hands. Such treatment cannot possibly be justified. The amendment fortifies the position of the dog owner who otherwise is at a great disadvantage in disproving the presumption made in certain cases that he has a dangerous dog. It is the least that can be done in terms of offering some measure of protection to those who may be charged with a crime that carries quite severe penalties.
I sincerely hope that the noble Earl will pay serious attention to this amendment. I am bound to be cynical about it because I believe that all is set on this Bill and the Government want to adhere to it. As I said the other day, the Government do not want any measure that will start an argument in the House of Commons if it is returned there for reconsideration. I believe that this House would be failing in its duty—as I believe that it has so far—if it failed to provide adequate minimum protection for those who may fall on the wrong side of this new law with all its retrospective consequences. I sincerely hope that the amendment will be taken seriously and that we shall be able to ask the House of Commons to reconsider the matter.
§ Lord Renton
My Lords, I hope I may have your Lordships' leave to speak again to make a procedural suggestion to my noble friend. It has just occurred to me that if he is unable to accept my noble friend's amendment, and we in return enabled him to make his amendment, his amendment could be amended in another place on lines acceptable to my noble friend Lord Campbell of Alloway. Speaking for myself I would support that as an alternative provided that my noble friend Lord Ferrers could give an undertaking 712 that in another place an amendment drafted to the Government's satisfaction, but containing the sub stance of my noble friend's amendment, were moved by the Government in another place as an amendment to a Lords amendment.
§ Lord Soulsby of Swaffham Prior
My Lords, before the Minister replies to that request, I hope I may say that I am a little concerned about one of the practical applications of Amendment No. 7. However, I am not concerned about the philosophy of the amendment. Amendment No. 7 demands that a veterinary surgeon shall examine a given dog and certify that it is of a type bred for fighting or has,the characteristics of a type bred for such purpose",or is,the type of dog which presents a serious danger to the public".I have had representations from the British Veterinary Association which is very concerned that many veterinary surgeons may well be unwilling to provide such a certificate. As has been said in previous debates, they support the Bill but there is the difficulty of their being certain enough to provide a certificate. That is the major problem. It is possible to give a professional opinion, but to be at the point of being so certain that one is willing to certify—this from a veterinary surgeon is virtually accepted as a statement with the force of law—is a different matter.
The pit bull terrier may not be a problem in this context because a description of it which extends over two pages has been provided by a special commission to the Dutch ministry of agriculture. That is probably the most helpful description that we have, but the difficulty will lie in the other two categories under the proposed amendment and the type which presents a serious danger to the public.
Until we know more about the genetics of these dogs and we are able to do some impartial test such as fingerprinting, which is not at the same stage as it is in the human field, it will be very difficult for many veterinary surgeons to issue the sort of certificate which is demanded here. The intent and the philosophy are good, but many veterinary surgeons may well have a problem when they are asked to issue a certificate.
§ 7 p.m.
§ Lord Richard
My Lords, before the noble Lord sits down I wonder whether I may put a point to him. He is making the point that in fact it would be difficult for any veterinary surgeon to certify that a particular dog was of the type which presented a serious danger to the public. As I understand the object of the amendment, it is to require a veterinary surgeon to certify that an animal was of the type known as a pit bull terrier or that known as a Japanese Tosa or the Argentinian dog or the Brazilian dog, or that it was of the type which the Secretary of State had named as a Rottweiler or Alsatian, or whatever the dog was, under Clause 2.
As I understand it, the veterinary surgeon would therefore be starting off with a dog that had been named as a Clause 2 dog. In other words, for the sake of argument, if the Secretary of State were to say that Clause 2 applies to Rottweilers because they are 713 a serious danger, all the veterinary surgeon would have to dc would be to certify that the particular dog he was examining was a Rottweiler or was of the type known as a Rottweiler. I would welcome the noble Lord's view on whether that presents a great difficulty to veterinary surgeons.
§ Lord Soulsby of Swaffham Prior
My Lords, it would not be a problem with Clause 1 or Clause 2 dogs. It would be a problem with Clause 3 dogs.
§ Lord Richard
My Lords, if I may now speak to the amendment, as I understand it the intention is that Clause 3 dogs should not be covered by the amendment, and that it should apply only to Clause 1 and 'Clause 2 dogs.
§ Lord Campbell of Alloway
My Lords, for the sake of the record—we are getting into a muddle—this does not apply to Clause 3. I will deal with some of the other misunderstandings when my turn comes to speak.
§ Lord Richard
My Lords, what we are concerned with is whether or not, before a prosecution can succeed, it should be necessary for a veterinary surgeon to certify that a particular dog was a Clause 1 dog or a Clause 2 dog. As I understand it, if it is a Clause 3 dog that does not apply and is not the purpose of the amendment.
I understand what the noble Lord has just said: it would not cause such a great problem for the veterinary surgeon to certify if it was Clause 1 or Clause 2. If that is right, it seems that some of the practical problems which appeared to arise in the speech of the noble Lord, Lord Soulsby of Swaffham Prior, have disappeared.
A: Committee stage of the Bill I said that I had a conflict between my views as a barrister on where the onus of proof should lie and my views as an individual who, on the whole, supported the Bill. I am bound to say that the amendment proposed by the noble Lord, Lord Campbell of Alloway, seems to me to be sensible and the type of amendment which the Government should be able to accept. It is important that before a prosecution is brought a veterinary surgeon should actually say whether the dog is a Clause 1 dog or a Clause 2 dog, rather than that it be left to a clerk in the Crown Prosecution Service, who then establishes a presumption which it then becomes necessary for the defendant to surmount. That latter position seems to be intrinsically unfair. Therefore, in principle I would support the amendment.
§ Lord Soulsby of Swaffham Prior
My Lords, before the noble Lord, Lord Richard, sits down, may I point out that my comments previously applied particularly to the Clause 1(1) (c) type of dog?
§ Lord Richard
My Lords, I see the point that the noble; Lord is making, but if the Secretary of State designates a dog as a Clause 1(1) (c) dog, then the dog will presumably be named. It will be a breed of dog or a "dog of the type known as". As I understand it, Clause 1(1) (c) is now being used to deal with the 714 Argentinian dog and the Brazilian dog, so one has a body in existence against which one can weigh and can certify.
My Lords, coming to the matter afresh and purely as a barrister, there seem to be two serious points here. First, people talk about the prosecutions as though they were always brought by the Crown Prosecution Service, but it is presumably open to an individual to prosecute. A prosecution could be taken out in respect of a corgi or a poodle. The person would come along with his dog expecting to show it to the magistrates and say, "This is obviously not one of those", but he cannot do that because he has not given notice 21 days earlier. So he has to get a veterinary surgeon or somebody to come along and give evidence against the private prosecution.
But, perhaps more seriously, if there really is difficulty in a vet giving a certificate that it is a dangerous dog or belongs to one of these categories, how much more difficult is it for the private individual to find a vet to come along at his, the owner's, expense to give evidence that it is not one of those kinds, because it is very much easier for an expert to say positively that something is than that something positively is not. If there is real difficulty in the point about the certificate, surely it is very unfair to put on a private person an onus of proving that any dog that an individual chooses to prosecute is not in one of these categories.
My Lords, I think the amendment of my noble friend Lord Campbell of Alloway has got us all into rather a tangle. My noble friend has produced this amendment on other occasions and, if I may say so, he reminds me of a Jack Russell with a piece of wood: he has got hold of it and he is jolly well not going to let go. He has stirred it around and all sorts of misapprehensions and difficulties have arisen as a result.
The noble Lord, Lord Houghton of Sowerby, said he hoped that the Government would give the matter serious attention. I can assure your Lordships that we have given it very serious attention. We are as much concerned as everyone else is that we should be as fair as possible to those who are accused of criminal offences in Clause 1 or Clause 2 of the Bill. In order to achieve that aim, my noble friend would require the prosecution to produce evidence on every occasion to back up the statement that the dog in question is one to which Clause 1 or Clause 2 applies. It would not be possible for the prosecution merely to rest on its own view.
The noble Lord, Lord Richard, said that he was torn because he was a lawyer. My noble friend Lord Renton was torn too because he was a lawyer, as was my noble friend Lord Campbell and the noble Viscount, Lord Bledisloe. I am not so torn because I have the advantage of not being a lawyer. It seems perfectly simple to me. We are making rather a meal of something that is quite simple. My noble friend Lord Renton asks, with even more guile, why do we not think about this? Might we not accept the 715 principle of the amendment of my noble friend Lord Campbell of Alloway and have the Bill altered in another place?
My noble friend Lord Renton is a past master at being a parliamentarian. He has learnt the business over the years and knows the ropes through and through. He knows perfectly well that that argument is not a runner. He realises that we are up against the buffers slightly. It is pushing the bounds of reason a little far to suggest that we should amend the Bill and send it back to another place for it then to be sent back here.
That is not the reason why I ask your Lordships not to accept the amendment. The reason is quite simply that the business of identifying that a pit bull terrier is in fact a pit bull terrier is difficult. My noble friend Lord Soulsby of Swaffham Prior was quite right. It is much easier to say —all veterinary surgeons will say this—that an animal is not a certain type than it is to certify 100 per cent. that it is a certain type. We have been advised by the British Veterinary Association that it is far easier, even for an expert, to prove that a dog is not of a type than to state categorically that it is of a type. We do not want to go down the road of asking the prosecution routinely to produce statements when we have been advised beforehand that they might be difficult to obtain. That is a fairly basic point that we should consider.
I am aware that my noble friends' amendments do not just apply to pit bull terriers but to other types of fighting dog that may he specified under Clause 1(1) (c) and other types of especially dangerous dogs that might be specified under Clause 2. There may well not be the same problems in identifying those kinds of dogs, although there will be few people with experience of those kinds of dog. I cannot recommend, however, that we go down the road of accepting an amendment which may work well for other types of dog that might be added later but which we fear will not work well for the one type of dog to, which we know it will have to apply. We all know perfectly well that there was only one Tosa in this country and that the problem relates to pit bull terriers. Your Lordships have been told that they are a cross-breed and that, as such, it is much easier to prove that a dog is not a pit bull terrier than to say with certainty that it is.
I hesitate to recommend that your Lordships should accept the amendment for the other simple reason that I fear that it may well involve courts in unnecessary additional work. I said that there may well be difficulty in obtaining certificates stating that a dog is of a type to which Clause I or 2 applies, but there would be no difficulty in the owner himself obtaining a certificate confirming that his dog is not one of those types. After all, if an owner is to be told that he will be prosecuted because he has a certain type of dog and he knows that his dog is not of that type, he can produce the evidence. He knows where he bought the dog. He knows what its antecedents are and whether it has a pedigree. None of those facts would be available to the prosecution, but the defendant could perfectly well produce them if he 716 knew that the dog that he was accused of owning was not that dog. I have no doubt that, if he knew that his dog was not a pit bull terrier, he would be able to prove that.
It therefore seems much more sensible that we should look to the defence to produce evidence if they wish to rebut the prosecution's assertion that the dog is of a Clause 1 or 2 type. That should ensure that, in those cases where there is genuine dispute or uncertainty as to whether a dog has been correctly identified, appropriate time is given to considering the matter. However, where there is no dispute as to the dog's type, it is not reasonable to say that the prosecution should be bound to go to take the time and expense to call out a vet and obtain a certificate.
Cases will come to court—I believe that they will be few—only where the prosecution is sure that the dog is of the type to which Clause 1 or 2 applies and that the owner has not taken the appropriate steps. The police and local authority dog wardens—we should think of those people; the dog wardens will know all about this—will be given advice on the identification of pit bull terriers and other relevant types of dog. Many already have considerable experience in that field. When they are not sure, they will call for expert advice from veterinary surgeons. That stands to reason. I do not believe that the police will prosecute someone because they think that that person has a dog which might be a pit bull terrier. If there is any doubt, they will obtain advice beforehand. I do not think that there will be many cases of dogs being incorrectly identified as dogs to which Clauses 1 and 2 apply.
I noticed in Amendment No. 9 that my noble friends have extended the notice that the defence is required to give before rebutting the prosecution's assumption about the type of dog from five days to seven days. I hope that my noble friend will be pleased that in the amendment that has been tabled in my name we have decreased the amount of notice that the defence must give from 21 days to 14 days in order to accommodate his anxiety. I accept that if the burden of proof is to remain on the defendant, it is only fair to give the defendant a reasonable time to bring forward his own evidence on the simple question of fact. At present there is a requirement for him to give notice that he will bring forward evidence no later than 21 days before the trial. In the circumstances, it is reasonable to allow an accused person a little longer. That is why we now propose that the accused person should have to give only 14 days' notice before trial.
I hope that my noble friends Lord Campbell and Lord Renton, the noble Lord, Lord Airedale, and the noble Lord, Richard, who is still wrestling with the anxiety of being a lawyer, will agree that that concession goes some way towards meeting their concerns. I can only reiterate that we are not contemplating a traumatic change to British justice. It is merely a case of making something fairly simple work in a fairly cost-effective and simple way which will affect very few people when the time comes. It would be better to leave the Bill as it is.
§ 7.15 p.m.
§ Lord Airedale
My Lords, how does the noble Earl suppose that the Secretary of State will get into the position of asserting that a dog is of a particular type? He must consult an expert, who will probably be a vet. He would not do it off his own bat. If he is to consult a vet for that purpose, why not make it clear, as the amendment does, that it is on the say-so of the vet —the expert—that the prosecution is founded? I see no reason to have any doubts about that.
My Lords, one of the reasons why the noble Lord might have a doubt is that he has got the matter wrong. The Secretary of State does not come into this. The police approach a person and the Crown Prosecution Service then takes up the matter. What are the facts about this? We are talking basically about pit bull terriers. Everyone who has a pit bull terrier knows that this law is coming about and that they will have to have their terrier treated, obtain a veterinary certificate and muzzle the dog. It is only when someone has not done that and when the police find that there is a pit bull terrier which has not been subjected to the law—I believe that those cases will be very few—that the police will go along and say, "You are breaking the law. We will take your case to the Crown Prosecution Service". It is then up to the CPS to decide whether to prosecute. It is not likely to prosecute the individual if the person says, "This is not a pit bull terrier. It's a chihuahua". The person will go to a vet and ask, "Is this a pit bull terrier?" The vet will say, "I cannot guarantee that it is, but I can tell you that it isn't". If it is not, the person will not be prosecuted. The Secretary of State does not come into it.
§ Lord Campbell of Alloway
My Lords, I shall be very brief. On this occasion my noble friend the Minister has produced some entirely new arguments which in fact are entirely misconceived and, unknown to him, will work the inevitable injustice. Perhaps I may be allowed a little indulgence to explain why that is so.
One of the misconceptions of my noble friend—I think that I correctly noted his remarks—is that one has to certify 100 per cent. Let us consider that for a moment. To begin with that is not the way in which evidence is led. It is expert evidence. It is a matter of opinion. There is no question of certifying 100 per cent. It is: "In my opinion as a veterinary surgeon, this dog belongs in one of the five categories". This situation is not just concerned with pit bull terriers. It is a matter of opinion. There is no question of 100 per cent. One does not have to prove it 100 per cent. All that has to be done in a court of law, even in a criminal case, is to prove beyond all reasonable doubt. That is not 100 per cent.
The whole concept of my noble friend is adrift. Therefore he cannot see or allow himself to see the manifest injustice that this provision will produce. To say that it could apply to some types of dogs and not to other types of dogs again is a total misconception based on the 100 per cent. problem of the certificate. It is in the opinion of the veterinary expert that the dog 718 is of that type. It is idle to pretend that we are concerned only with pit bull terriers. We are not. That problem arose on the last occasion.
One thing is manifestly plain: the longer that my noble friend the Minister addresses your Lordships, the more apparent it becomes that there are serious problems of definition involved here. If there are serious problems of definition involved, it is plain, straightforward, manifest justice that the accused should know what type of dog, in the opinion of the expert, he is alleged to have.
I am grateful to all noble Lords who have spoken in this debate. I hope that I am not being tiresome, obdurate or a Jack Russell (not a pit bull terrier) with my piece of wood, if I maintain my stand. I may be right or wrong—it is a matter for your Lordships—but I believe that this measure is basically unjust. I am not prepared to do otherwise than take the opinion of the House.
§ 7.23 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 51; Not-Contents, 90.719
|Division No. 2|
|Airedale, L. [Teller.]||Lawrence, L.|
|Birk, B.||Lockwood, B.|
|Blease, L.||Longford, E.|
|Boston of Faversham, L.||Mackie of Benshie, L.|
|Campbell of Alloway, L. [Teller.]||Mason of Barnsley, L.|
|Milner of Leeds. L.|
|Cocks of Hartcliffe, L.||Molloy, L.|
|Craigavon, V.||Monson, L.|
|David, B.||Nicol, B.|
|Dean of Beswick, L.||Pitt of Hampstead, L.|
|Dormand of Easington, L.||Renton, L.|
|Ennals, L.||Richard, L.|
|Falkland, V.||Robson of Kiddington, B.|
|Feversham, L.||Seear, B.|
|Gallacher, L.||Shackleton, L.|
|Galpern, L.||Stockton, E.|
|Glenamara, L.||Stoddart of Swindon, L.|
|Graham of Edmonton, L.||Taylor of Blackburn, L.|
|Greenway, L.||Taylor of Gryfe, L.|
|Grey, E.||Tordoff, L.|
|Hacking, L.||Turner of Camden. B.|
|Hilton of Eggardon, B.||Tweeddale, M.|
|Houghton of Sowerby, L.||Wharton, B.|
|Howie of Troon, L.||Wigoder, L.|
|Kagan, L.||Williams of Elvel, L.|
|Kilbracken, L.||Winstanley, L.|
|Allen of Abbeydale, L.||Clanwilliam, E.|
|Alport, L.||Cochrane of Cults, L.|
|Ampthill, L.||Cork and Orrery, E.|
|Arran, E.||Craigmyle, L.|
|Astor, V.||Crathorne, L.|
|Auckland, L.||Crickhowell, L.|
|Barber, L.||Davidson, V. [Teller.]|
|Belstead, L.||Denham, L.|
|Blatch, B.||Denton of Wakefield, B.|
|Bledisloe, V.||Downshire, M.|
|Blyth, L.||Elles, B.|
|Boardman, L.||Elliot of Harwood, B.|
|Boyd-Carpenter, L.||Elton, L.|
|Brabazon of Tara, L.||Ferrers, E.|
|Brigstocke, B.||Flather, B.|
|Brougham and Vaux, L.||Fraser of Carmyllie, L.|
|Carnock, L.||Gisborough, L.|
|Cavendish of Furness, L.||Glenarthur, L.|
|Grimston of Westbury, L.||Mountevans, L.|
|Harmsworth, L.||Moyne, L.|
|Harvington, L.||O'Cathain, B.|
|Hayter, L.||Orkney, E.|
|Hemphill, L.||Park of Monmouth, B.|
|Henley, L.||Pender, L.|
|Hooper, B.||Pym, L.|
|Howe, E.||Rankeillour, L.|
|Jenkin of Roding, L.||Reay, L.|
|Joseph, L.||Rees, L.|
|Kimball, L.||Renfrew of Kaimsthorn, L.|
|King of Wartnaby, L.||Rippon of Hexham, L.|
|Kitchener, E.||Rochdale, V.|
|Lane of Horsell, L.||St. John of Bletso, L.|
|Lauderdale, E.||Savile, L.|
|Lindsey and Abingdon, E.||Sharples, B.|
|Long, V. [Teller.]||Soulsby of Swaffham Prior, L.|
|Lucas of Chilworth, L.||Stodart of Leaston, L.|
|Mackay of Ardbrecknish, L.||Strathclyde, L.|
|Mackintosh of Halifax, V.||Strathmore and Kinghorne, E.|
|Macleod of Borve, B.||Suffield, L.|
|Massereene and Ferrard, V.||Trumpington, B.|
|Merrivale, L.||Ullswater, V.|
|Mersey, V.||Vinson, L.|
|Milverton, L.||Windlesham, L.|
|Montgomery of Alamein, V.||Wise, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.30 p.m.
§ [Amendments Nos. 6 and 7 not moved.]
§ Clause 5 [Seizure, entry of premises and evidence]:
Earl Ferrers moved Amendment No. 8:
Page 6, line 34, leave out ("twenty-first") and insert ("fourteenth").
§ The noble Earl said: My Lords, I spoke to this with Amendment No. 5. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 9 not moved.]
§ Viscount Astor moved Amendment No. 10:
§ After Clause 5, insert the following new clause:
§ Dogs owned by young persons
§ (" .Where a dog is owned by a person who is less than sixteen years old any reference to its owner in section 1(2) (d) or (e) or 3 above shall include a reference to the head of the household, if any, of which that person is a member or, in Scotland, to the person who has his actual care and control.").
§ The noble Viscount said: My Lords, this amendment stands in the place of the new clause after Clause 5 tabled in my noble friend's name at Report stage. Your Lordships may recall that at that stage my noble friend begged leave to withdraw our amendment because we felt we needed further time to consider its precise wording. We have now had an opportunity to review the drafting of the new clause, and the policy behind it, and have come up with what we consider to be an improved form of words.
§ The amendment as it now stands still provides that where a young person owns a dog the head of the household is included also as the owner. This is a most important provision as it means that a parent cannot escape responsibility for a dog to which Clauses 1 or 2 apply, or a dog which is dangerously out of control (Clause 3), by claiming that the dog is owned by a minor. I am sure that we all wish to prevent an adult from trying to evade responsibility for a dog on the basis that it was "owned" by a child.
§ As was remarked during our debate on the subject at Report stage, there could be cases where the actual 720 owner of the dog is a neighbour, unrelated to the child, and where the parents have no idea that their child was walking the neighbour's dog. We would not seek to make the parents responsible for their child's actions in those circumstances, although it would of course be possible for action to be taken against the owner as well as, or instead of, the child in charge of the dog if an offence under the Bill were committed. We want to preserve the important principle that the parent should not be able to be held responsible for the criminal actions of a child when there is an absence of criminal intent on the part of the parent. Many of your Lordships will know far better than I do how essential that principle is to criminal law generally.
§ Our Bill has other provisions which bear on the parent/child relationship. The combined effect of the leash requirement in Clauses 1(2) (d) and 6(1) (b) means that a person under 16 cannot lawfully be in charge of a Clause 1 dog in a public place. Moreover, in respect of dogs generally, an adult who allows a child to take charge of a dog which the child cannot control could not avail himself of the defence in Clause 3(2). I hope that this reassures your Lordships that we have been careful to protect children where necessary and to ensure that parents do not evade their responsibilities. I hope, too, that noble Lords will agree that we have not placed unreasonable or unacceptable burdens on the shoulders of parents. We have tried to make sure that responsibility for their child's actions is only transferred to them when it is appropriate for that to happen. I hope that your Lordships will accept this amendment. I beg to move.
§ Lord Richard
My Lords, we are grateful to the Minister for the amendment, which we support. However, in view of what the noble Viscount said on the importance of retaining the sanctity of the principle that the parent should not be responsible for the sins of the child, I cannot resist saying this. We spent a great deal of time during debate on the Criminal Justice Bill discussing provisions by which the Government were precisely trying to make the parent responsible for various sins that the child might have committed. They were trying to haul parents up in court, to bind them over and, if necessary, to send them to prison if the child were in default. I am glad to see that the Government have had a change of mind.
§ Lord Kilbracken
My Lords, will the noble Viscount answer the question that I put at the previous stage about the identity of the head of the household? Is the definition laid down in statute? How is that decided?
My Lords, perhaps I may give an example. When a child owns a dog, he may be a minor. Therefore the head of the household is included as the owner. Presumably the head of the household would normally be his parents.
§ Lord Kilbracken
My Lords, I am trying to understand whether the head of the household is the father or the mother, whether that has been decided by statute and, if so, in what way.
My Lords, the phrase "head of the household" comes from the Animals Act 1971. I can only refer to common usage.
§ On Question, amendment agreed to.
My Lords, I beg to move that the Bill do now pass. As your Lordships know, the Bill was introduced as a response to an emergency. It is quite unusual for a piece of emergency legislation to undergo quite such careful and close scrutiny as that to which your Lordships have subjected the Bill.
I am glad that this much needed piece of legislation has, in general, commanded the support of your Lordships' House as it did in another place. We have made a great many important concessions. The noble Lord, Lord Richard, said in conclusion that he was glad to see that the Government have had a change of heart. We are always prepared to have changes of heart when change is shown to be better. I know that the noble Lord, Lord Houghton of Sowerby, claimed during Report stage that the only amendments which the Government had made, or intended to make, were amendments which were in the Government's mind in the first place. In parallel with the noble Lord's generally generous disposition, he also has a generous imagination. Many of the amendments to which we have been able to agree are amendments for which we can take little credit ourselves. Some are ideas which were put forward in another place and some are ideas which have been put forward by your Lordships.
The amendment to enable the relevant criminal offences in the Bill to be applied to the communal areas of blocks of flats which are secure-entry controlled reflects a suggestion which was put forward in another place. The same is true of the amendment which we have made to prohibit people under 16 years of age from being in charge of dogs which are covered by Clause 1 of the Bill.
We introduced an amendment to Clause 3 to make it an offence to allow a dog to become dangerously out of control in a place in which it was not permitted to be. That now appears as Clause 3(3) of the Bill. It closes a loophole by making sure that the dangerously out of control offence can apply in the case of dogs on private land such as school playgrounds or a neighbour's back garden.
We have been able to accommodate suggestions made by your Lordships at Second Reading and other stages of the Bill. It will be a requirement of the certificate of exemption for Clause 1 dogs that the owner must keep the dog in secure conditions in or around his home. That was a point urged on us by the noble Viscount, Lord Falkland. I was sorry that we could not agree the amendment of the noble Lord, Lord Monson, put forward at Report stage. He was keen that it should be on the face of the Bill that those Clause 1 dogs should be insured. I told the noble Lord that that would be one of the conditions of the certificate of exemption. He appeared doubtful and said, "Let's have it on the face of the Bill". He must recognise a concession when he sees one. It is rather the same as if he went into a restaurant and asked the waiter for a meat pie. If he is given a meat pie he must 722 recognise it. He wanted Clause 1 dogs which had been exempted to be insured and they will be under the order made by the Secretary of State.
We have introduced an amendment which would prevent the owners of Clause 1 dogs, or other dangerous dogs, from trying to avoid the full force of the law by claiming that the dog belonged to another member of their household. That was an idea which was put forward by the noble Lord, Lord Richard, and it was one to which we agreed even though it took us a couple of tries before we got it right.
I know that we have not been able to go as far as some noble Lords would have liked. In Committee and on Report my noble friend Lord Mancroft put forward an amendment relating to hunt saboteurs. That stretched the confines of the Bill about as far as one could go, but, nevertheless, he had a shot at it. I hope that I have convinced my noble friend that we take the problem of hunt saboteurs most seriously and that we are taking action to combat such things. I am glad that, if nothing else, the noble Lord, Lord Richard, has mastered the elementary fact that trumpets are instruments which are played in orchestras and not on the backs of horses.
We went a long way towards meeting the anxieties of my noble friends Lord Mancroft and Lord Kimball in the amendment which we made to the offences in Clause 3 of the Bill by changing the expression "causes injury" to "injures". I was glad in particular to be able to agree to a change in the Bill which will ensure that police dogs and other dogs which are controlled by people in the Crown service do not fall foul of the criminal offences in Clause 3. That was a matter about which my noble friend Lord Jenkin of Roding was concerned. The idea was originally put forward by the noble Lord, Lord Hayter, during Second Reading. It was taken up in the form of amendments by the noble Viscount, Lord Falkland, and my noble friend Lord Radnor.
I am sorry that we could not go further to accommodate the anxiety expressed by my noble friend Lord Radnor. He was worried about the person who, while walking along the road, was hit on the head by a cat which during the excitement of the day had accidentally moved backwards off a balcony on the fourteenth floor of a block of flats and whistled through the air. My noble friend asked, "What would have happened if that had been a dog?". Indeed, I ask what would have happened had it been a scaffold pole or a flower pot.
We could not accommodate—I am afraid that the sight of the noble Baroness, Lady Seear, who periodically gets an attack of the giggles, slightly disorientates one.
The noble Lord, Lord Houghton, always puts forward his points most forcefully. That is part of his character. I do not believe that having seen the savagery of the attacks on little Rukhsana Khan and Frank Tempest and the terrible injuries that they suffered, any responsible Government could have stood by and done nothing.
I was sorry that I could not meet my noble friends Lord Campbell of Alloway and Lord Renton in the amendments that they tabled this evening. I was 723 grateful in particular for having the benefit of the comments of my noble friend Lord Soulsby of Swaffham Prior, whose knowledge on veterinary matters is considerable.
The noble Lords, Lord Monson and Lord Clifford of Chudleigh, spoke movingly about the attack on Mr. Tempest and his courage in recovering from it. The Bill provides tough measures to rid the country of the menace of those fighting dogs. Equally important, it provides the means for tackling at an early stage similar problems which might arise in the future. If the powers which are now available in the Bill had been available 15 years ago when the first pit bull terriers reached these shores, I doubt whether we should have had to bring forward this measure today.
We have had a number of interesting and informative debates on the Bill. The arguments have made it a much more effective piece of legislation than it was when your Lordships first received it from another place. I am grateful for your Lordships' contributions and for the ideas put forward. I hope that the changes that have been made to the Bill will now be endorsed by another place and that it will pass into law very soon. I commend the Bill to the House.
§ Moved, That the Bill do now pass.—(Earl Ferrers.)
§ 7.45 p.m.
§ Lord Richard
My Lords, I thank the Minister for the way in which he has dealt with the Bill. He has done so with humour and flexibility, although perhaps not as much as we should have wished. I sometimes believe that the noble Earl is one of the grand emulsifiers of the Government. He comes to the House when a difficult situation presents itself. He rises and oil is poured. On some occasions it is poured with more success than on others. He has poured oil on the whole of this Bill fairly successfully. However, although we on these Benches have supported the structure of the Bill and have agreed with most of its provisions, there are gaps about which he knows and has referred to tonight.
Whatever I say about the Motion, I am afraid that I shall be unable to satisfy the views of my noble friend Lord Houghton of Sowerby. I suspect that he will make his views known to us tonight in his usual trenchant fashion. I can say only that in relation to the last amendment upon which we voted I attempted to go some way in his direction. I was delighted to find that the pair of us were in the same Lobby. That appeared to be at least an accommodation.
Insurance will be a serious issue which at some stage the Government must address. How does one compensate people for the terrible injuries that we have seen? I have considerable sympathy with the amendments proposed by the noble Lord, Lord Monson, in that respect. I am not sure whether we have the term "public place" absolutely right. I am not sure whether we have the term "owner and keeper" absolutely right. I am certainly not sure whether we have the onus of proof at criminal proceedings absolutely right —I believe that we have got it wrong.
On the whole the Opposition have been able to support the Bill and therefore we support this Motion.
724 I thank all noble Lords who have participated in the debates—at least those who have participated on the side that I have tried to advocate. Finally, I thank the Government for having accepted some of the amendments that we tabled.
The Viscount of Falkland
My Lords, we on these Benches echo what has already been said. I thank the noble Earl for handling the Bill with his customary good humour and courtesy. I have done particularly well and I thank the noble Earl for meeting the anxieties that I expressed about the keeping of dogs in secure surroundings. He was kind enough to communicate to me in a letter his solution to the problem. I was happy to accept his undertaking that a condition of the permit would be that the owner of a Clause 1 dog must undertake to keep the dog under secure conditions. He said that the permit would be revoked if he failed to do so. The noble Earl introduced an amendment to the House which met the anxieties that I expressed about police dogs. I remain worried about the strict liability provisions and we have had interesting arguments about compensation.
During the course of the Bill I tried to explain some of the more arcane points to my noble friend Lady Seear. I have been at some pains to explain the gravity of the matters that we have been discussing, but perhaps I have not often communicated that satisfactorily. She has seen some of the funnier points of the matters which we have discussed. After we leave the Chamber I shall attempt to tell her how serious this has been and that she has misinterpreted some matters. I shall explain to her that perhaps they are not as funny as she thinks they are; or perhaps they are. Having said that, I have great pleasure in supporting the Motion that the Bill do now pass.
§ Lord Monson
My Lords, I briefly echo the words of the noble Lord, Lord Richard, and the noble Viscount, Lord Falkland. I thank the Minister for the courteous and witty way in which he has piloted the Bill through your Lordships' House.
Nothing on earth would induce me to go into a restaurant and ask for a meat pie. I can think of many other things which I should prefer to order, not least because one would be suspicious of the type of meat of which the pie was composed. In this case, the pie which the Government are offering is not suspect because of the type of meat of which it is composed but merely because there is far too little meat of any sort in it.
As the noble Lord, Lord Richard, says, I believe that we must return to the question of insurance before long because the public will not be satisfied with the Bill in its final form. It may not have made any difference to the result, but when speaking to my amendment earlier this afternoon I should have mentioned that the RSPCA is fully in favour of my amendments and acknowledges that they are not connected with a registration scheme. It believes the amendments to be worth while all the same. Once again, I thank the noble Earl.
§ Lord Houghton of Sowerby
My Lords, I am sorry to say that I get no fun out of the Bill at all. I do not 725 deny any humour which the noble Earl or anybody else can get out of it. However, the task assumed has been heavy and disagreeable. I am deeply depressed about the Bill because I have lived through the period of government inactivity, indolence and apathy. I saw them bursting forth a few weeks ago with a remedy for a situation which they call an emergency. The noble Earl called it an emergency a few moments ago. It was nothing of the sort. There is no statistical evidence whatever which provides a basis for calling the situation an emergency.
This Bill is the ugly sequel to the complete break down over the past 18 months of communications, mutual understanding and co-operation for constructive legislation on the control of dogs. That could have been averted with better understanding and wisdom on both sides. Quite candidly, I believe that the pressure for a national registration scheme for dogs was pressed so far and with such success that the Government eventually regarded it as a matter of confidence in them. They were determined to resist and defeat it at all costs. The costs were great. Ministers and others were called from all over the world to vote in a Division in the House of Commons which the Government nearly lost. They did that to fend off the threat to their position.
Discontent and worry about the position of dogs in society were undoubtedly canalised in the campaign for a national registration scheme which conveyed the wrong impression; namely, that it was the panacea for all the problems as regards dog control and regulation. However, it commanded sufficient support to threaten the Government's self-confidence. They issued discussion papers in 1989 and 1990. They discarded both of them in order to erect a defence against the assault of the case for a national dog registration scheme. There was a complete breakdown in what would otherwise have been a constructive period. A good deal of thought had been given to the matter by both the Government and the animal welfare organisations.
The discussions were complicated by the fact that on the question of dogs one had to deal with the Department of the Environment, the Home Office and the Ministry of Agriculture. Agriculture came into it because of the farmers. The Home Office came into it because of the courts, and the Department of the Environment is apparently the department which has the main responsibility for dogs. We then had to deal with the Secretaries of State for Scotland, Wales and Northern Ireland. Therefore, a meeting on matters arising from various recommendations made by the Government was almost a mass meeting. One tried hard to distil out of that an effective and acceptable policy for dogs. Good progress was made.
However, it was interrupted because the Government broke off while they defended themselves against the threat of dog registration. That was a great pity. To press the matter so far was a miscalculation and a political misjudgment. Some of the organisations which took part in the debate should consider various of their activities in trying to manipulate Parliament. They tried to pressurise both Houses of Parliament—we have had a dose of that in other 726 connections also. The relations between pressure groups and societies and Parliament need to be studied afresh. Otherwise, Members of both Houses will be under very strong pressure to bend towards the propaganda which they are asked to take on board.
As I say, in June on no sound statistical basis the alarm seemed to be sounded. The tabloid press mounted a virulent and vicious attack upon the Home Secretary. The Home Secretary is a vulnerable Minister. He is probably the biggest vote loser for the Government in the present Administration. His record as regards the poll tax, education reforms and chairmanship of the Conservative Party is not impressive. There is trouble left behind in each sphere and there will be trouble left behind here. In 12 months' time the Home Secretary will not be there but the aftermath of the Bill will still be with us. Considerable trouble is brewing as regards the administration of the Bill.
We do not have the answers to a great many questions. We are in the dark because of the haste with which the Bill was brought forward. We do not know what it will mean to the citizen in a week or two's time. Without any consideration whatever this measure has been forced on dog owners at the beginning of the holiday period. Apparently they are to be given until the end of October to obtain clearance. That must be done under the pressure of the next few weeks.
This is a cruel and brutal Bill. It takes no account of the interests of dog owners who are citizens entitled to own dogs. Do your Lordships realise that never before in the history of the British people has an Englishman been denied the right to have the dog of his choice so long as it behaves itself and does not do harm to others? The first Bill on dogs was in 1871 and it dealt with the control of dogs. That was the last government Bill introduced on the subject.
The mischief is that for some inconceivable reason successive governments, including Labour governments, have regarded some matters of grave public concern and parliamentary interest as suitable for the Private Member's Bill procedure. That system is one full of obstruction and frustration in which one can try one's best year after year without accomplishing any result. The moral issues have been relegated to the private initiative, as it is called—abortion, contraception, marriage, divorce, dogs and animals generally except farm animals. Farm animals are money; they are a farm interest and that is why a special department looks after farm dogs.
In spite of all those obstacles, some of us have worked year in and year out attempting to obtain acceptance by Parliament and the public of a different approach to dog ownership in this country. When this outburst came, the Government submitted to the explosion that came from Fleet Street. They went out into the open and made idiotic exclamations about exterminating all dogs and other wild threats as to what would happen. There was no consultation before that happened. Out of the blue appeared the Home Secretary uttering such threats. When he came to consult with the organisations that would be required to co-operate in giving effect to that extreme measure, he quickly realised that what he had wanted to do 727 initially was not on. That is the kind of Government and Minister that we have. They do not show the strength of character and wisdom that we need.
The Government have no qualifications to introduce this Bill. Their record belies all this activity. They have no authority to do it. I doubt whether the Bill, when it passes into law in a few minutes' time, will have any authority; it will have no moral authority as the law of the land. I believe that we need a well equipped properly advised canine defence league to form an organisation which will defend the interests of those who own dogs and who have lawfully owned them until now but who will be placed on the wrong side of the law when the Bill is passed.
I do not know which way the welfare organisations will go on the matter. It is time they took fresh stock of their attitude to a number of problems relating to animals. There is a lot of money involved, much of which has been wasted. This is the ugly outcome of the breakdown of that communication which promised so much and was progressing when the Government became startled because your Lordships' House passed an amendment to the Environmental Protection Bill to bring about the setting up of a national dog registration scheme. What a tragedy all that turned out to be.
Where are we now? What do we do next? Is this the end of dog control? There was much more to be considered than is contained in the Bill. The Bill concerns dangerous dogs. I introduced the last Bill on dangerous dogs in 1989, with government aid and government support. The Government did not do it themselves. Because it had been relegated to the Private Member's Bill procedure I had to do it on my own. In all the attempts I made to improve the lot of animals I never once had the support of my party to bring about any change. Private Member's Bills procedure implied neutrality on the Front Benches of both sides of both Houses. What a shame that has been.
I find it difficult to control my feelings at this time. I have no time to spare for the vision of the future regarding dogs in society. It is 18 years since I produced the first study of dogs in society, which was followed immediately by an interdepartmental committee which produced similar recommendations. Nothing was done. No government would take it up. No government wanted to raise the dog licence fee; they did not want to ask people to pay more to keep their dogs. The whole thing withered on the bough. Efforts were made—the Government co-operating up to a point—to get things moving again.
There are other matters contained in the book published in June of last year on dog control. What is to happen to them? Strays went into the Environmental Protection Bill. The Government used that as a lever to fend off the attack which they felt was impending on a restoration into the Bill of the clause regarding the national dog registration scheme. They loaded the whole thing into an amendment to the Environmental Protection Bill; they forced it through the House of Commons and your Lordships' House at the last minute on 31st October last year. Since that 728 time they have been denying that there is any problem in regard to dangerous dogs. They have given no warning that they were concerned about dangerous dogs. When they wanted to fend off the attack in October of last year it was not dangerous dogs that were brought to the fore; it was the stray dogs, the dogs on the heap that were portrayed in pictures that so upset the public.
There are dozens of questions to ask about the Bill. We know practically nothing about its administration. We do not yet know the identity of the agencies to which dog owners who wish to retain their dogs will have to go in order to obtain a permit. We do not yet know what fee they will be asked to pay; whether it will be loaded with a hostility tax; whether it will be realistic or whether the Government will intend, by an exorbitant fee, to discourage people from wanting to retain their dogs.
What guidance is to be given under the Bill to all concerned about that position? Will the owner decide initially whether or not he owns a pit bull terrier? If he is of the opinion that it is not a pit bull terrier, will he therefore be entitled to take no action? How is the pit bull terrier owner to come forward? Will he be asked to report somewhere to give evidence about it? Is the Act to be enforced by the threat of heavy penalties? Or are we to have, as hinted by the Home Secretary, a kind of social espionage where neighbour will inform upon neighbour and people in the streets and parks will say, "That looks to me like a pit bull terrier. You should have it muzzled and obtain a permit"? Will we live in an informer state in the matter of dog control? We want to know more about that.
Another important question concerns the role of local authorities. An appointed officer of the local authority, along with the police, can enter and seize a dog. But I do not see that the local authority has any role in this scheme otherwise. Why not? What is it for? There are other questions with which I shall not weary the House. Never in my experience have we reached this stage knowing so little about how a Bill will work when there is a time limit within which the citizen must act and he may be guilty of a criminal action if he does not.
Yet at this moment nobody really knows how the legislation is to be implemented. Are we to have a breakdown in administration and problems with the inability to get attention? Is the new agency to have offices throughout the country? Will the dog owners have to take the dogs long distances to the permit office? Nothing has been said as to how people stand. The reason is that these matters have not been thought about at all. The legislation has been scrambled together as it has gone along. The Government subordinated the House of Commons and coerced it. The Government control Parliament so that they can control dogs as a matter of emergency when there is nothing of the kind. This Bill is offensive. It is an offence to anybody like myself who has worked so long to get a reasonable and sensible answer to a difficult and complicated problem.
I ask forgiveness for this outburst. It is the last that I shall make on dogs. Therefore, I am bidding the subject farewell in your Lordships' House. I have done 729 my bit and I have done it voluntarily. I have done it for no money and very little reward. I am a very depressed person at the end of the day. However, that is a purely personal feeling and it need not affect the progress of government legislation or the policy of the day. At any rate, having the Floor of the House, I am using it to the full to express my indignation at the way in which, quite unnecessarily, this legislation has been handled. I hope that before very long someone else will make a better job of it than this Government.
My Lords, everyone knows the feelings of the noble Lord, Lord Houghton of Sowerby, about dogs: he is perfectly justified in giving vent to them. It was never within our expectations that the noble Lord would come round to seeing the Bill as necessary and as a good measure. The noble Lord said that he had watched indolence and apathy on the part of governments that do nothing about Bills. But when the Government produce a Bill he has done nothing but castigate it and try to sink it. He said that the Bill had no qualification or authority in the country. He said that there was no moral authority for it and no evidence of its necessity. He said that there was no emergency.
There was an emergency and evidence of its necessity. The evidence was that these dogs injured people in the shocking way we have seen. It is because we do not want such dogs in this country that the Bill is before us. The noble Lord says that there is no emergency. I remind him that in the United States 34 people have lost their lives as a result of attacks by pit bull terriers. If that happens there, then all we want is that it does not happen in this country. The noble Lord, Lord Houghton, is entitled to his views and to express them. We marvel at the way in which he expresses them with a fluency few of us have in this Chamber. I am glad that on this occasion his is a solo voice. The majority of your Lordships have decided that the Bill is desirable. I commend it to your Lords hips.
§ On Question, Bill passed, and returned to the Commons with amendments.