Hunting Hearings - Minutes of Proceedings
DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
MINUTES OF PROCEEDINGS
at a
PUBLIC HEARING
on
HUNTING WITH DOGS
held in the
Boothroyd Room, Portcullis House, Westminster, SW1
on
Wednesday 11 September 2002
SESSION A
DAY 3
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Rt Hon Alun Michael, MP, in the Chair
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(From the Shorthand Notes of:
W B GURNEY & SONS LLP
Westminster House
7 Millbank
London, SW1P 3JA)
In attendance:
MR DOUGLAS BATCHELOR, Campaign for the Protection of Hunted Animals.
MS PHYLLIS CAMPBELL-MCRAE, Campaign for the Protection of Hunted Animals
DR ARTHUR LINDLEY, Campaign for the Protection of Hunted Animals.
MR JOHN ROLLS, Campaign for the Protection of Hunted Animals.
BARONESS GOLDING, Middle Way Group.
MR PETER LUFF, MP, Middle Way Group.
MR LEMBIT OPIK, MP, Middle Way Group.
MR SIMON HART, Countryside Alliance.
MR JOHN JACKSON, Countryside Alliance.
MR RICHARD LISSACK, QC, Countryside Alliance.
MR BERNARD BENNETT-DIVER, Defra
MR CHRISTOPHER BRAUN, Defra.
MR NIGEL LEFTON, Legal Directorate, Defra.
MR DAVID PRITCHARD, Defra
MR NICHOLAS ROBSON, Defra
DR PETER ROBERTSON, Defra.
DR MATT HEYDON, Defra
THE CHAIRMAN: Good morning, I am very pleased to welcome everybody to the third day of evidence in relation to Hunting with Dogs. Before we go any further could you check your mobile phones, switch them off and similarly any sounding pagers.
I have one very important announcement to make about the arrangements today. Everyone will be aware of the events of September 11 last year and that this occasion is being marked in a variety of ways today. In general the point of marking of the occasion is at 1.46, the time when the planes went into the buildings in New York. Can I ask everyone to be in their places at 1.40 today ready to join in that active commemoration with a short silence. To make this possible we will end the morning session at 12.45. As the same session runs from the end of the morning into the beginning of the afternoon no evidence will be lost and no time will be lost. I am sure that everyone will agree that it is important to join in the active commemoration and that arrangement will allow us to do so with the minimum of disruption to proceedings. I hope that is acceptable.
To recap on what I said at the beginning of the hearing yesterday, the purpose of these three days is to hear evidence on the principles of preventing cruelty and recognising utility, the two topics on which we have each spent a day, and how these principles can be applied in practice. This forms part of the process which started last March which I announced to House of Commons on 21 March as the part of the process.
The panel on my right comprise of representatives from the Campaign for the Protection of Hunted Animals, The Countryside Alliance and the Middle Way Group. Over the previous two days we have heard evidence on utility and cruelty. The theme of today's session is how these principles might be applied. We will hear evidence from a number of expert witnesses who will present their views and their response to questions from the panel. Each of the expert witnesses has produced a short paper which will be available outside the door at the end of the relevant session.
I would encourage members of the public to make any comments they wish to make on the comment sheet which is provided in your information pack or to write to me separately if you would prefer and I have given an undertaking to read all comments provided after the hearing concludes.
I would also remind people about the parliamentary convention, that is that evidence is heard in silence. It is a parliamentary convention not always obeyed. Facial expression and the waving of arms round is also discouraged, although we will be very enduring in these proceedings at least. The purpose is not to have winners or losers but to have an intelligent discussion based on the evidence, albeit involving people who have very different views about the outcomes that should be pursued by Parliament. The purpose is to better inform me, to better inform Parliament and to better inform the public about issues that have normally been debated in a most divisive and polarised way.
With that element of scene-setting can I remind you that our purpose this morning is to explore possible ways the principles of cruelty and utility might be applied and by whom. I am pleased to welcome to the hearing Gordon Nardell and Michael Patchett-Joyce, both barristers, who are going to comment on possible ways of applying the principles from a legal perspective and the way in which we should deal with these issues in law. Can I ask Gordon Nardell to start.
MR NARDELL: Many thanks, Minister, for the invitation to give evidence to this hearing. First of all a short comment, if I may, on my own position, a comment which also extends to Mr Patchett-Joyce. We have both been asked to comment in our capacity as barristers. Our involvement has been professional. I am a barrister practising public law and parliamentary work. The involvement I have had in the issues has been in professional engagements in the ordinary way. I am not a member of any of the interested campaigning organisations and neither is Mr Patchett-Joyce.
However I do have to declare two interests, first of all in my capacity as a member of the Attorney General's Panel of Crown civil advocates I have current instructions in two matters in respect of Defra, neither of which have anything to do with hunting, so I do not think that embarrasses me. Equally I have current instructions in a public law matter from one of the constituent organisations of the CPHA, again it is a matter entirely unrelated to hunting.
A further matter, perhaps it is stating the obvious, both Mr Patchett-Joyce and I were involved in putting certain positions to the Burns Inquiry and of course today we are here not instructed by any particular organisation but to assist Defra in providing evidence, it would hardly be surprising if some of the ground we cover bears some resemblance to the material that either of us put before the Burns Inquiry.
May I also make this short point, that is that Mr Patchett-Joyce and I have seen each other's papers. We thought it was sensible we should do so. It is a curiosity perhaps of these proceedings that lawyers are involved at the policy making stage at all. We are both rather curious as to the assistance it was that we were required to give and what issues we were meant to be shooting at, so we found it helpful to look at each other's papers to see what ground we covered. We have seen that material. Both of us are of the view it is unusual for lawyers to be involved, for this reason this may cast come light on the assistance I see myself as giving today. Ordinarily where there is a controversial issue involving the conflict of scientific evidence or moral or political principles the last people one would turn to are lawyers to assist. Taking the point against myself, it is sometimes said.
THE CHAIRMAN: Your preamble in terms of the professionalism with which you are approaching this issue is entirely understood by us all. This is entirely an innovative process we are going through which I hope will demonstrate that constructive approaches can be found where they are least expected. As you suggest it is innovative to invite lawyers to take part in a constructive role. I am sure that both of you will rise to that opportunity.
MR NARDELL: I hope that we do, Minister. In the ordinary course of things what would happen is that Parliament or ministers would initially make up their minds as to what policy they are going to put before Parliament, having consulted and having looked at scientific or ethical material. Parliament likewise would then take the view as to whether it is appropriate to legislate in terms of ministers and put it before Parliament in somewhat different terms. Then what would happen, certainly at a ministerial stage, is that ministers having made up their minds on the proposed policy would go to lawyers at that stage - and of course there is much expertise within government within departments and the Parliamentary Council Office in giving effect to sometimes thorny and controversial issues of policy in legislation. I do not see it as my role to second guess either the government's legal machine or indeed my former colleagues at the Parliamentary Council Office in terms of how one might adopt legislative technique, it would be a matter for them in due course. On the other hand I do want to provide some assistance and it seems to me that one of the achievements of Burns was to narrow the ground, particularly on this issue. There were somewhat issues of various organisations, particularly from the then group Deadline 2000, The Countryside Alliance who put that one of the real achievements of Burns was to narrow the gap between the parties in terms of how one might deal with areas of legislation. What Burns had to consider primarily was the question of whether a prohibition on hunting subject to exceptions would be appropriate. In terms of legislation it was that ground that he primarily covered. In a sense the parties came to Burns on one side saying it was simply impossible to legislate to prohibit hunting, even subject to exceptions, and it was said on the other side there is really no problem. Burns position was that it is possible but there are a number issues to consider, a number of choices for ministers and Parliament to make.
I see my role as looking at the ground which Burns has left open, analysing those choices and offering a few thoughts and markers as to how some of those choices might be resolved in legislative technique and legal principle. As I said I do not see it as any part of my role to try and second guess what line government lawyers, and in due course the parliamentary council, take to give effect to government policy when legislation comes to be presented to Parliament.
Minister, you have seen my paper and annexes and you will see the general tenor of the thoughts that I offer. I do not think the content of the paper gains a great deal in repetition. Perhaps what I can do is just cover one or two of the areas mentioned in the paper and just add one or two short thoughts.
You will see so far as the basic shape of the legislation is concerned the view I have offered is that if ministers were to decide that the appropriate option is a prohibition on hunting subject to exceptions then something along the broad lines of the Hunting Bill presented to Parliament and passed by the Commons as the prohibition option and as framed would be a broadly sound starting point for such legislation. That is essentially the view I have offered in my paper.
One of the issues that Burns had to consider was whether legislation in those broad terms, which used plain English as a principle rather than a detailed definition approach to hunting and to the accepted activities, whether that is sufficiently certain, that was one of the questions that Burns had to consider. You may think, Minister, that in the views I have expressed that such an approach is entirely acceptable and have been reinforced by events in Scotland on the challenge mounted to the Protection of Wild Mammals in Scotland Act 2002. A number of complaints were made by opponents of that Act based on the European Convention of Human Rights. As I understand it none of those complaints was a complaint to the effect that the legislation lacked appropriate clarity and for that reason infringed either Article 6 or Article 7 of the Convention, on the contrary the challenge to the Scottish Act in the court of session was far from being unclear legislation it was all too clear. It was that effect that complaint was made about and the court held so far as the convention Parliament struck a balance it was entitled to strike rather than prohibition subject to certain defiant exceptions. It was not suggested in the challenge to the Act that there was a hopeless lack of clarity or anything of that sort.
The question specifically that we are asked to consider today, amongst others, is by whom. The question arises therefore should it be for Parliament to lay down from the outset what is the prohibited activity and what is to be permitted or should there be some delegated power.
The question of the proper constitutional openness of delegated decision making is a large subject, it is not a subject I could cover adequately in a five minute presentation. If there is some interest in dealing with it today I would be happy to deal with it. It seems to me that the general suggestion that there should be some local decision-making process is one which I do not find fault with provided it is understood that a local fact finding process is entirely appropriate. Parliament's role is to set out the legal framework within which courts and tribunals take decisions. If one is looking for a local tribunal with local knowledge and expertise to find facts, decide whether somebody has crossed a line and is permitting a prohibited act then if so the obvious way is a local tribunal in a magistrates court, a body consisting of lay people with legally qualified assistance who can use their local knowledge to ask whether it is plausible that somebody who claims benefit of exception for using a dog for pest control purposes. Magistrates can ask themselves if it is plausible that this person was in this place and in these circumstances acting for that purpose. That is the sort of role proper local decision-making can play. It seems to me that magistrates courts would be the proper forum to that extent. I am at one with the general idea. Mr Patchett-Joyce proposes in his paper there should be a local tribunal with a role to play. Where I suspect we are going to differ is whether that tribunal should itself be a miniature Burns Inquiry or Defra deciding what is acceptable or what is not in a particular area.
One of the conclusions that Burns did reach on the question of the form of legislation - a conclusion if I may respectfully say I entirely share - was that one should not have legislation which on its face creates different law in different geographical areas of the country. One is not to have cruelty or utility by post codes. That delegation of decision-making as to where the balance between cruelty and utility should be struck in particular cases or particular areas is not one that is appropriate to delegate area by area, the one which stands ought to be set at a national level.
A short point, if I may, about one other issue which Burns at least reached a tentative conclusion on, that is the arrangements for commencement of any legislation. Burns concludes in his summary at paragraph 1.20, "If Parliament chose the option of a ban on hunting it would be feasible to implement a ban quickly because they would still have the advantage of certainty".
I just make this observation that no complaint was made by opponents of the Scottish Act that a particularly short time within which that Act came into force in itself took that at the wrong side of the Convention line, the substantive complaints were largely devoted to Articles 8 and 14 of the Convention, Article 8 of the Convention and Article 1 of the first protocol. No separate point was made in the short-term frame. Commencement of the legislation in itself was a factor making legislation incompatible with the Convention.
Finally, if I may, on the question of the Convention - again that is another large subject which is entirely improbable to do justice to in a short presentation. If there is interest in it is an area which I do claim some experience and skills and my view is that ministers were entirely right when the Hunting Bill was introduced in the 2000 session with three options to certify it under section 19(1)(a) of the Human Rights Act that nothing in the Bill was incompatible with any of the Convention rights and ministers were right to certify when the Bill came to the Lords with the prohibition option it shows the others ministers were right to certify at that stage in their view the Bill was compatible with the Convention rights. My views of the Convention are not based solely on the result of the recent Scottish case rather the result of the Scottish case was widely expected.
Ultimately it is rather difficult to advance a case where there is fundamental human rights to use one's property or possession to perform acts which as decided are cruel and abhorrent. It is a case that is inherently difficult to make and one which in my view cannot be made. Legislation in any of the three forms proposed by the original Hunting Bill supervision, regulation or prohibition legislation in any of those three forms would be wholly compatible with the Convention rights. That is my presentation. I do apologise if I have gone over the five minutes. I made a number of remarks which could be thought to be made on behalf of both of us. I hope that is helpful.
THE CHAIRMAN: Thank very much indeed. Can I invite Mr Patchett-Joyce to say something.
MR PATCHETT-JOYCE: Mr Chairman and members of the panel I am grateful to Mr Nardell for the spirit in which he made his presentation and I would also like to begin by endorsing his comments to the basis on which our evidence is given and I share what he said in that regard.
Mr Chairman, I have taken as the basis of my evidence the enclosure to your letter of 31 May 2002. Having reviewed that enclosure I have formulated three questions which seem to arise from that enclosure by specific reference to particular paragraph in that enclosure, which is set out in the synopsis that I handed out.
Mr Chairman it may be convenient if I simply begin by identifying those questions and then turn to discussing them. The first question it seems to me as follows, in front of what body or tribunal should issues as to whether hunting with dogs has or has not caused unnecessary suffering be resolved? Who should be represented on such a body or tribunal and what should the decision-making process be?
The second question is very similar with regard to utility, in front of what body or tribunal should issues as to whether hunting with dogs has or has not sufficient utility be resolved? Who again should be represented on such a body or tribunal? What should the decision-making process be?
Thirdly, should local or regional factors be taken into account?
Mr Chairman, I begin by identifying, as I see it, the fact that these questions arise in circumstances where hunting is permitted in certain circumstances and where there is a challenge as to whether the circumstances have not been met, in other words that there has been unnecessary or excessive suffering caused to an animal or whether there was insufficient utility for hunting to make place.
Mr Chairman, as I see it those questions fall very largely to be determined on a case-by-case basis. They are only going to arise if that which was otherwise permissible has been rendered impermissible by the particular circumstances of the case.
I have then turned to the question of burden and standard of proof, which seems to me to be important in this connection. The burden of proof should, in my view, always rest on the party seeking to establish that which is prima facie permissible on the particular facts or circumstances impermissible.
As to the standards of proof, in circumstances where one is debating permissibility or impermissibility in particular circumstances I have suggested that that is essentially a matter of valued judgment or of subjective judgment, where the standard of proof should be to a high civil standard of proof and I have suggested that it comes close to but should not necessarily be equated with the criminal standard of proof. I am reinforced in that view because I do not consider that infringement as between permissibility and impermissibility should be stigmatised as criminal. It may be very different if there is a total ban. I can certainly see it in circumstances of a total ban that criminal law is applicable. That, as I understand the issues as between principles of utility and cruelty, is not the centre of this morning's session. I am happy to explore the circumstances in a total ban by way of further questions if need be.
It seems that if there is an unintentional transgression and someone has hunted where particular circumstances render it impermissible then that is an unintentional error of judgment and what one should seek to do is learn from an unintentional error of judgment and develop clearly identified bounds of best practice. That is the most constructive way of moving the matter forward in that context. Therefore I see it as being essentially a non-confrontational environment, well distanced from connotations of criminality.
If one looks at the particular aspects, cruelty and utility, excessive cruelty or unnecessary cruelty are matters which all right thinking people are likely to come to a similar or the same view upon and therefore I can see that considerations of cruelty can be considered as susceptible of a universal standing. Of course a universal standing is quite capable of being applied at a local level. The example of magistrates courts spring to mind in a criminal context and employment tribunals in a civil context come to mind.
I do not think the same can be said so far as utility is concerned. It seems to me utility is essentially a local or regional matter. Utility can be considered in a quantitative sense and also in a qualitative sense. In a quantitative sense it really boils down to the question, is there a problem? Do we need to control pests? Qualitatively it is perhaps a somewhat more difficult question to formulate simply but it comes down to how best should the problem be dealt with. Of course dealing with the problem involves local circumstances such as the topography, the terrain and the geography. I can see that there is a distinction there but nonetheless it seems to me these are issues that will arise on a case-by-case basis, that they should be resolved on a case-by-case basis and that the proper level for resolution is at a local level, where a tribunal can bring its knowledge and experience in a particular area to bear. There is nothing between Mr Nardell and myself.
One point which could be said, local tribunals in this environment are novel but as you yourself said by way of introduction this hearing is an innovative process. All I am suggesting is that an innovative process in response to a new and novel question, a matter to be resolved.
I come to the conclusion that local tribunals comprising local lay representatives with or without a legally qualified chair whose process should be inquisitorial and non-confrontational is the preferred way of applying the principles of utility and cruelty and by whom.
Mr Chairman that is what I have to say by way of summarising my paper. In the spirit of cooperation and echoing the difficulties - and my learned friend Mr Nardell has already indicated how lawyers can properly treat this area - it may be convenient if I touch on a few points Mr Nardell has raised and explore common ground. The first point relates to techniques for framing legislation. We have common ground between us that the simple, plain English approach should be adopted, and that should promote certainty. I have made my point about the proper position of criminality and criminal standards, so I will not repeat that. I agree with Mr Nardell that there should be clarity as to the scope of activities covered by any legislation and I agree that there should be clarity as to the elements of any offence under legislation.
Mr Nardell in his paper has raised two specific points, the need for intention or to use the Latin tag that lawyers are enamoured with, mens rea, on the part of anyone who is charged with an offence, I agree intention must be an essential element of any crime and should be spelt out.
The position of accessory is raised by Mr Nardell in circumstance where the "principle offence" comes within an exception. In my view if there is no substantive offence there should be no ancillary offence.
So far as exceptions are concerned as I read what Mr Nardell is saying he is advocating clarity - again I support that - clarity in relation to what is and is not prohibited. Within what is not prohibited clarity as to what is and is not subject to conditions and within what is subject to conditions clarity as to what those conditions are. Other than that as I read what he is saying the judgments are underlying issues he considers political rather than legal and I agree.
So far as enforcement is concerned a lawyer can, of course, tell you the range of potential punishments and sanctions but lawyers are not law enforcers, still less are they politicians. I think that there then becomes a very fine dividing line, (over which I do not wish to thread) where, for example, the danger of creating the rural equivalent of the old “sus” law is obvious. It seems to me that such risks must be considered together with the views of law enforcers and ultimately be matters of political resolution.
Mr Nardell mentioned compatibility with convention rights and commencement. Both of those are, in my view, a bit removed from the topic under consideration, namely the way of applying principles of utility and cruelty and by whom. Very briefly, so far as compatibility (with Convention rights) is concerned I am certainly aware of the recent judgment in Scotland that it is rather difficult to give the patient a clean bill of health without so much as an inspection. In order to properly inspect one would need to have a hard copy draft in front of them to comment.
So far as commencement is concerned I echo a refrain which is now becoming familiar in that this may be an area on which a lawyer cannot provide much expert input. The legal issues may not be as straightforward as are assumed by Mr Nardell, that is a matter for debate and open but moreover there are social, economic and community issues which it might also be very proper to take into account. The diversity of those considerations, all of which are relevant, means that experts legal input, being relatively narrowly focused is perhaps of less assistance on that topic. I am very much obliged.
THE CHAIRMAN: Thank you very much indeed for two very interesting presentations. I hope we can cover as much ground as possible. Yesterday I asked the panel if they could keep their questions succinct to avoid them being leading or too tendentious. I ask them to observe those requirements today, although I am sure both of our witnesses well be well capable of dealing with the most twisting of questions.
I also seek, if I may, because this is an innovative process and we are getting towards the point of learning the best way of dealing with it, if a particular line of questioning is asked by one group I will give the other two an opportunity to come back on the same points and we will try to deal with all of the questions on a particular topic before going on to the next substantive one. We will try that anyway. If it is abused it will count as your substantive question and we will move on to the next one.
MR OPIK: Thank you very much for your presentations, they were very interesting. I am in an amazing circumstance to find myself questioning barristers for free. I want to focus on the question of regional variation in the law. I think Mr Nardell made an interesting point, there seems to be a view that we cannot really have a difference, I believe you said, Mr Patchett-Joyce, you did not feel it would be very easy to a regional variance of the law, either way the question I have - given Lord Burns himself identified that hunting with dogs was much more significant as a fox control method in some areas, such as the Fells in mid-Wales, than in other areas how - would you legally address a situation whereby if the minister or the government decide that was not the conclusive case how would you then apply law across the whole of England and Wales without disadvantaging those areas?
MR NARDELL: The way this was accommodated in Scotland where the issue arose during the passage of the Mike Watson Bill was that it was acknowledged that there were different needs in different parts of the country, in Scotland as a country. Some methods of pest control are more prevalent in some areas than others. Essentially an approach was adopted that if a case was made to Parliament that a method of pest control was required in one area and the method was incorporated into an exception to cover the whole of the Scottish area, so rather than disadvantaging an area one levels it up so it becomes an exception applicable during the jurisdiction I see no difficulty in England and Wales doing the same
MR PATCHETT-JOYCE: There is not disadvantage in an area if levelling up is right. Let me give you as an example, where I was last weekend, I was sitting outside the Tower Bank Arms in a village in the Lake District nursing my half pint of Hawksheadead Bitter. As I looked out in very close proximity to the village there were fields of sheep, horses, cows. The fields were relatively small, they were demarcated by dry stone walls, within the fields there was undulation, there were rocky outcrops, matters like that. In circumstances like that if you are going to control foxes by high velocity rifles you are going to risk injuring animals, you are going to risk ricocheting, you are going to be using very powerful weapons very close to the village and it seems to me that is quintessentially an example of where a regional tribunal deciding on the issue of utility can bring local knowledge to bear, because anyone who looked at that scene could understand the need for pest control assuming that you have established utility by means other than shooting with high velocity rifles. It seems to me that that is the way forward.
MR OPIK: Just to clarify that, what Mr Nardell is saying is in circumstances - for example in mid-Wales the area I know best - activity X is regarded as necessary for whatever reason one would ensure that that area is not disadvantaged by raising the legal framework across the United Kingdom England and Wales to be consistent and not to disadvantage that area. What you are saying is then the local tribunal, which you both agree is the appropriate way to make this assessment, would apply that common legislation to the circumstance. Is what that what you both said?
MR PATCHETT-JOYCE: Yes.
MR JACKSON: I have a brief tone-setting question, if I can then pass the questioning on to Mr Lissack, who will try and develop a theme we hope will be developed. This day is about where the law and - I should not say that - the rest of the real world meet. Interface I have been concerned with another life for something like 50 years. Following on I think a very helpful atmosphere, do you agree that the right way to help the Minister and get something out of this is not to start from the extreme position and defend them but to try and seek out as much common ground between those positions as possible?
MR PATCHETT-JOYCE: Yes.
MR NARDELL: Certainly, yes.
MR LISSACK: Gentlemen, can I just remind you of what the Minister said is his approach, 21 March, "We propose to frame legislation that prohibits activity based on these two principles, cruelty and utility", rather than simply setting out a list of activities to be banned. On Monday of this week he said, "I wish to bring forward proposals for legislation which will be soundly based and stand the test of time".
Can I take cruelty firstly and then later utility and deal with them separately. As far as cruelty is concerned do you agree that the law should be shaped to protect wild mammals from cruelty?
MR PATCHETT-JOYCE: Yes.
MR NARDELL: I hesitate because I expect all right thinking people would say yes. Ultimately it is for Parliament to decide what the contents of the legislation will be. I remind myself the role I have to play is a relatively limited one.
MR LISSACK: When we look at ways of applying principle of cruelty, the principle of cruelty is to protect wild animals. Do you agree?
THE CHAIRMAN: Perhaps if you went to the end of the question rather than trying to lead that would be appropriate.
MR LISSACK: What do you see as the purpose of the legislation which each of you are here to help the minister shape?
MR NARDELL: That very much depends on how the ministers make up their mind to propose legislation. If they take the view as a matter of policy that the principles of cruelty and utility can best be given effect by an outright ban subject to exception then the legislation will give effect to that. If they take the view those principles can be best balanced by some other course then they will want legislation to relate to that course. I am certainly happy to assist on the various issues that might arise, the pitfalls and problems depending which option is chosen. It is very hard to help in a priori way you are inviting me to.
MR LISSACK: Can I invite you to consider whether this is a useful approach, there is already a range of measures in law in this country that governs cruelty towards some wild mammals and domesticated and farmed animals too, do you have views - I would be interested to hear what they are - on the extent to which it would be desirable to produce a level playing field to protect wild mammals generally from acts of cruelty against them?
MR PATCHETT-JOYCE: Yes. I think what you are inviting us to do is to go back and explore the two principles which are going to be used to frame legislation for prohibiting activities. Utility has, I think, been defined quite clearly and we can go back to the definition, the management and the conservation of natural habitat and wildlife, managing and controlling forest species, fox, deer hare and mink, utility issues in regard to related areas, hare coursing, ratting, falconry, rabbiting and deer stalking. That is the definition within which the framework, the legislation is to work so far as utility is concerned. So far as cruelty is concerned I can understand Mr Nardell's reluctance, a reluctance shared by me I have to say, to get involved in issues of what is or is not cruelty, and what is or is not unavoidable cruelty or what is or is not excessive cruelty or unnecessary cruelty because those are matters which were raised previously, as I understand it, and they are not matters on which lawyers can provide expert input. Yes, the avoidance of unnecessary or excessive cruelty is a proper objective of legislation protecting wild mammals and as this is legislation which will protect wild mammals it falls into that category.
MR NARDELL: I certainly agree that the present statute book which includes legislation dealing with the broad areas of cruelty to animals and protection of wild mammals or the capture of domestic animals (?) goes back to the mid-19th century - the Game Act and the Game in Scotland Act - going right up to the Protection of Wild Mammals (Scotland) Act 2002, and if anything can be done to create a level playing field for the lawyers who have to use the statute book so much the better. I am aware that Defra has probably inherited the consultation and review of the principal statue dealing with captured and domestic animals - namely the Protection of Animals Act 1911 - and the more that can be done to speed up this change of legislation - some of it inconsistent and some of it very old and curious in its terms - the better. If this exercise of legislation on hunting enables the exercise of some priming of the statute book to be conducted, then so much the better.
MR PATCHETT-JOYCE: I generally agree with what Mr Nardell has said but I was at one point concerned that lawyers were about to become a quarry species, but apart from that ----
THE CHAIRMAN: I have always been of the view that they are well capable of looking after themselves in such circumstances. I would just add that we are very interested in creating a level playing field but for the public rather than for lawyers. That is probably an outrageous thought.
MR LISSACK: That was a very helpful answer from the panel. May I pursue it a little, only about one further step?
THE CHAIRMAN: Yes. Can I ask one thing, and that is could we pursue this in a way of encouraging discussion rather than an approach, perhaps, of appearing to build a case?
MR LISSACK: Yes. Could the panel discuss this: have either of you or both of you considered whether changes could be made to the present wild mammals protection act of 1996 to frame it in such a way that it provides a broad spectrum of protection for all wild mammals? If you have considered it, I would be interested to hear your views.
MR NARDELL: I have not considered it specifically other than making the comment that it perhaps fuels my earlier remark that it is one of a number of pieces of legislation, all of which have a rather different texture and language register, and if it would be possible to use this exercise as an opportunity to turn that into something rather simpler then so much the better.
MR PATCHETT-JOYCE: The only matter of which I am aware and which I would wish to add is that the Bill to amend the Wildlife (Mammals) Protection Act 1996 was introduced in February 2001, where of course a much simplified definition was provided, where the offence was that any person who intentionally inflicts or causes or procures unnecessary suffering on or to any wild mammal shall be guilty of an offence, and that is a very straightforward and clear statement which is consistent, I think, with the views that both Mr Nardell and I have been propounding, namely that anything that is on the statute book should be in clear and plain English and readily intelligible.
MS CAMPBELL McRAE: In the spirit of your introduction, Minister, what we would like to do is ask supplementaries based on the question asked by Lembit Ôpik and then the Countryside Alliance Group ----
THE CHAIRMAN: We will see how we go.
DR LINDLEY: The first point that was raised then seemed to disappear and I would like the opportunity to pursue it a little bit. As I understood it, the question related to where there was a perception that a particular activity was absolutely essential in a particular area and how do you deal with that. Mr Nardell suggested there was no problem; you round up the national level. Mr Patchett-Joyce suggested in his personal experience that it was clearly generally accepted that shooting was a possibility but having heard two days of evidence I am not sure the body of expert opinion is universally of that same view. So the question I wanted to pursue is, if there is this concept of rounding up at a national level, should that be done on the basis of a proven necessity, not desirability, and if it is rounded up at a national level should it not be a decision at a national level as to whether it is appropriate?
MR PATCHETT-JOYCE: I think, possibly, one has to separate the concepts that we are dealing with in order to provide a proper answer. First going back to cruelty, I can see, as I said in my introduction, that that is susceptible and capable of being treated as a universal or a near-universal standard; you are unlikely to get significant margins of difference between right-thinking people as to what constitutes excessive cruelty or unnecessary cruelty if you ask the question in London or in Devon or in the Borders or in wherever. So that is one aspect.
So far as utility is concerned, it is very interesting to hear what you say in responding to the anecdotal point that I made. However, I think it perhaps goes to confirm the point I was making because it is in that sort of environment, as I see it, where a local or a regional tribunal is absolutely best-placed for determining issues of utility, both on a quantitative basis – “is there a problem?” - and on the qualitative basis – “How best is that problem resolved?” So I think you have to separate the issues that we are talking about and, perhaps, slightly different answers or indeed different answers are applicable to the two issues and the two principles that are being debated this morning.
MR NARDELL: What interests me is the question, in a sense, to what standard should Parliament hold those who argue that some activity which would otherwise be regarded as cruelty should nevertheless be permitted? I think it is important and that lawyers avoid being at all prescriptive as to how Parliament should deal with matters of that sort. One can say that it sounds entirely sensible that the standard of necessity is appropriate but of course individual legislators may make their mind up on issues that involve a balance between the scientific and the moral for all sorts of reasons.
It is very easy for lawyers to use concepts that may be at home in a court of law, such as the burden and standard of proof, and very easy to apply those not necessarily entirely appropriately to the legislative approach, which is a rather different animal. So I am perhaps slightly diffident about expressing a view on whether necessity is the right standard. It seems an entirely sensible exhortation to make to Parliament but I would not want to be prescriptive and say Parliament is, for some constitutional reason, only entitled to recognise the legitimacy of an exception to satisfy itself it is absolutely necessary and nothing else can do. There may be other motives which individual legislators have for taking a particular view and I think lawyers have to be careful about being too prescriptive about that.
MR PATCHETT-JOYCE: I would agree that lawyers should not be too prescriptive, and the analogy that springs to mind is from European law where the concept of subsidiarity is very well established. So that you devolve the decision-making process to the level at which it ought to be taken. Therefore, I think that we are probably moving in the same direction or indeed starting off on the same basis, with utility, of local tribunals for resolving the issues.
MS CAMPBELL-McRAE: Just following on from that, it seems to me that there should be a level playing field and I think the Scottish exceptions were cited to suggest that where there were areas of concern for local need the Bill in Scotland took that into account. If that were the case in England and Wales and the Bill took that into account, my question really is to Mr Patchett-Joyce, would you therefore see and agree there would be no need for rural tribunals and that those matters could be taken up by what is already the effective tribunal, the magistrates' court?
MR PATCHETT-JOYCE: No, I think in large part the debate that has already gone on is an answer to your question. If I were to answer it again I would be repeating what has been said. I think the interesting point in what you say is perhaps to draw out as to whether one should be looking at a local tribunal as the resolving body or the magistrates' court. That comes back to the role that criminality and criminal standards play in concepts where value judgments and subjective judgments need to be brought to bear, particularly with regard to utility.
It seems to me that, in that context, a tribunal is preferable to the formality of a court. Given that the alternative - the other - principle is, as I have identified, a principle which commands universal or common standards, there is no reason why a local tribunal can not apply that standard just as well as a magistrates' court. Therefore, when one has two principles where one is better resolved in front of a local tribunal and the other principle equally capable of resolution in either, it seems to me that the tribunal is the better and preferred route to go.
MR BATCHELOR: Really, as a supplementary to that, and perhaps more to Gordon Nardell, what is coming out of this is a very clear distinction between a solution that says a Bill, on the face of it, bans certain things and provides exceptions, and the solution that involves quite a lot of red tape and issuing of permits and having tribunals and dealing with these issues in all sorts of different ways. (?) It further suggests, I think, that the standard of proof in relation to some sort of infringement of the permit might be dealt with in some sort of quasi legal process - a sub-magistrates' court process - whereas at the other end of the extreme if you have no permit you end up in the magistrates' court.
I think there is a very clear distinction between what has happened in Scotland where they discussed licensing and permits and decided not to go down that route and what is being suggested here, which is an enormously onerous and bureaucratic process. We would just like to have Gordon Nardell's comments in relation to, in essence, how they ended up with a much simpler process in Scotland and how applicable in terms of ease of good drafting that compares with the alternatives that we have heard being proposed, particularly in terms of the Henry VIII clauses as well ----
THE CHAIRMAN: That is quite a complicated question.
MR NARDELL: I think I have got the gist of it. Perhaps the sensible thing is to focus on how the Scottish legislation evolved on this issue, because the Protection of Wild Mammals (Scotland) Bill, as introduced, did indeed contain in its principal provision for exceptions a form of licensing of certain activities for certain purposes. So rather than the legislation setting out in bright line terms (?) what precisely would be permitted for what purpose and subject to what conditions and on what basis and so forth, one had a provision which set out a framework within which Scottish ministers could issue licences for such purposes and could make certain provision for it on the basis on which guns might be ultimately used.
It could have included some provision that Mr Patchett-Joyce flagged up a little earlier on, a provision about the sort of gun that might be used in a particular area - a high-velocity rifle in an area where there was some difficulty. If it would help - and I take a fairly minimalist approach to documents, because I am conscious you are not a judicial tribunal interested in ploughing through a whole range of legal authorities - I would be happy to ask to be copied and circulated a copy of Section 2 of the Protection of Wild Mammals (Scotland) Bill as it has been introduced to indicate the shape of that provision.
The view was taken that that would provide some flexibility while, at the same time, setting out a fairly defined framework within which ministers could grant licences and that might have involved some regional variation - a licence might have been granted for a particular activity to be carried out in a certain way in one area but not in another. My recollection of the process is that very strenuous representations were made to those promoting the Bill that, first of all, those who wished to involve themselves in pest control activity and who were rather uneasy about the Bill at all approached the promoters of the Bill to suggest that this was a rather cumbersome piece of machinery and they would rather see the terms of any exceptions set out in bright line terms, on the face of the Bill.
There were a number of other representations which I am afraid I do not recall which were also made. The result of that is that Mike Watson MSP undertook to the Committee considering stage 1 of the Bill to replace that provision at stage 2 with a series of bright line provisions more on the lines of the hunting bill as introduced by the Government at the Westminster Parliament. Minister, you will see the form the Scottish Bill eventually took when enacted, there were a series of bright line provisions rather than a delegated power to issue licences. There is another delegated power to vary legislation, and it may be that is a separate subject on which you may want to hear opinion. The experience of the Scottish legislation is that enabling some decisions to be taken about what might meet the principle of utility in a particular area was something that was seen as undesirable - not by those promoting the Bill but by those who saw themselves as affected by it. I do not know if that covers the ground of the question.
MR BATCHELOR: In the discussions in Scotland when it became clear that what was being proposed was licensing with all the red tape that went with it, representations from the farmers and gamekeepers was such that they said "We do not want to go down this route".
MR NARDELL: That is certainly my recollection of what happened.
MR PATCHETT-JOYCE: There may, I think, be a risk of the contrast that you paint being too stark a contrast. On the one hand, you put forward a ban subject to exceptions, which has a seductive simplicity to it, and, on the other hand, you raise the question of “red tape”, which I think is the expression you used in relation to licensing tribunals. Of course, the exception themselves would involve a measure of complexity and value judgments and subjective judgments being made.
To go back to pick up a point which Ms Campbell McRae was making in relation to the distinction between the relative merits and demerits as between local tribunals and local magistrates' courts, when one looks at employment tribunals, or VAT and duties tribunals, you have specialist tribunals who are creating a centre of knowledge and expertise in a particular, identified area. Whereas, of course, with magistrates' courts, the magistrates' courts are going to be dealing very largely with minor crime running the gamut of Stones' Justices Manual. So they (the Magistrates’ Courts) are going to be dealing with the Road Traffic Act cases, speeding, driving without due care and attention, the drunk and disorderly and drunk and incapable. They have got a much broader remit. Therefore, again, if one is looking at developing a centre of knowledge and expertise a tribunal offers that possibility to a much greater extent than a magistrates' court.
THE CHAIRMAN: I think I must ask for you to be a little tighter on both the questions and the answers if we are to make best use of the time.
MS CAMPBELL-McRAE: Just exploring your idea of local tribunals, given obviously that there is a huge amount of public interest in the issue of hunting with dogs, as we know having been here over the last few days, I would like to explore a little bit how you would see these public tribunals working and, in particular, would the public be allowed to have access to the tribunal process, to permitted activities that the tribunal allows, to gather evidence to review proceedings and, in cases of appeal, how do you see the public interaction with this process that you say is best left to those who know the area?
MR PATCHETT-JOYCE: I think there are two aspects that you raise. First public access. I am very much of the view that all tribunals and courts should be open to public access and the public should have full rights to sit in, attend and only in circumstances of security, or whatever, should matters be taken in camera. I think that is consistent with the human rights legislation. So public access, yes.
In terms of “Could the public pursue an appeal if they thought it appropriate?”, which I think was another element of what you were putting to me, my response to that is no, because it seems to me that matters before a tribunal should be pursued by interested parties. Therefore, access to the tribunal procedure by members of the general public would be too broad, too open and too wide. We can discuss and think about who should be interested parties but I think it should be limited to interested parties because otherwise it risks becoming too general
MR NARDELL: I do not have a strong view on the question of whether persons other than interested parties should have a right of appeal, but I am in agreement that as a general rule proceedings before courts and tribunals should be held in public. I wonder whether it is still necessary to tease out the distinction between a tribunal such as a magistrates' court and a VAT and duties tribunal on the one hand and the sort of tribunal which I suspect Mr Patchett-Joyce may have in mind in the proposal made in his paper on the other.
There is a distinction between a tribunal like a magistrates' court or indeed a VAT and duties tribunal which is exercising its powers to find facts and apply the law within a legal framework that is laid down for it in bright line terms by the legislator, Parliament or, in the case of VAT, very often a rather complex subordinate legislation. That seems to me to be rather different from the idea that a local tribunal would effectively be legislative or effectively be setting out the legal framework for itself.
Since we are looking at the area of the extent to which the standards normally applicable to judicial tribunals might apply to a tribunal of that sort, in terms of public access, rights of appeal and so forth, I wonder whether there might be this difficulty, and it is a difficulty in terms of certainty. I suspect that most of you will agree that if the rule of law means anything it means certainty and predictability - the idea that citizens should know before they embark on a course of conduct what the consequences are going to be.
If one is committing some conduct and then finds one comes before a tribunal which then has to make its mind up for itself on whether the particular activity should or should not be permitted, then one is not creating certainty beforehand. People who come before those tribunals to be punished or criticised or ticked off, or dealt with in some other way, want to know in advance what the legal framework is which governs their activity. It does strike me that one has to be careful to see whether the sort of decision-making body Mr Patchett-Joyce may have in mind is one which can be genuinely compared to the bodies familiar to all, like the magistrates' court or the VAT and duties tribunal.
THE CHAIRMAN: Just picking up on one of the sentences in Mr Patchett-Joyce's evidence when he suggests it is perverse to think that any responsible person would consistently and deliberately commit errors of judgment. I think that is rightly suggesting that once a general pattern is settled right-minded and law-abiding people would settle into recognising that. The problem is that there is another side to that, which is the question of how you deal with the conduct of irresponsible people and how that would be regulated and the determinations of the proposed tribunals enforced?
There is a second question, which I would be grateful if you could both comment on, which is coming to this question of when decisions are taken about what is acceptable. There is the suggestion of local circumstances being considered if that provides evidence for a particular activity being necessary. However, the question of whether a decision after the event - in other words, almost a prosecution or a test as to whether certain activity was within the law - or in advance in terms of determining that the local circumstances justify the activity in accordance with the exemptions that are in the law, I would be very grateful if you could both respond, because in practical terms this is quite a crucial issue.
MR PATCHETT-JOYCE: The first point that you raised, Mr Chairman, about irresponsible people raises very wide issues indeed, because to my mind it raises issues which go to the core of society. Society functions because of a consensus of opinion as to what is social responsibility. If you have someone who is persistently irresponsible then this is, to my mind, a circumstance where public access and knowledge of what is going on in a tribunal, where it can be reported in the local newspaper and it is known about, is a very important means of the social regulation that I think is at the heart of what you are saying in relation to irresponsible people.
Irresponsible people are not going to be changed overnight; people who persist in driving without insurance are not going to be changed overnight. It is a matter of social conditioning and making it very clear to people who are persistently irresponsible that that is anti-social behaviour.
THE CHAIRMAN: You used a good example there: the criminal law has not been very successful in changing the anti-social behaviour of people driving without insurance.
MR PATCHETT-JOYCE: That is the very point, because I think the criminal law is a rather blunt instrument, perhaps, in that context and it is certainly a blunt instrument in this context, where having mechanisms which develop best practice, which command uniform and universal approval for that best practice, is, to my mind, the way forward. That is best developed, as I see it, in a non-confrontational arena.
So far as prospective or retrospective is concerned, it is the role of legislation to establish matters in a “prospective” sense. So that you have certainty derived from the legislation of what you can and cannot do, what you can and cannot do subject to conditions, and what those conditions are. It is when a challenge is brought when someone has done something which they say is within the scope of that which is permitted and someone is challenging, saying "No, that is not the case because it infringes these matters" - that is “retrospective”, and there I see, particularly in that context, the role of the tribunal.
MR NARDELL: Minister, if I may respectfully say, I think you are entirely right to link the two questions, because it becomes very difficult to assess the responsibility or irresponsibility of people unless one has a yardstick against which to make that assessment. It pre-supposes that people know what the law is in advance to make assessments of whether they are responsible people who observe the law or are seriously irresponsible and make themselves serious recidivists.
I do not pretend to be either a criminologist or an expert in penal policy but I make this observation, that one of the decisions Parliament has to make is on the range of sentencing options available to criminal tribunals, assuming it takes the course - which is the course almost universally taken where the subject of cruelty to animals has been legislated upon, and there is this long and sometimes confusing list of legislation stretching back many years. It generally reflects the choice that where one comes to the conclusion that an activity is cruel and persons who are guilty of those cruel acts ought to be subject to the criminal law, the pre-supposition is that one knows what the law is.
In Annex 3 to my paper, Minister, you will see that there is a very short comparative note on the enforcement of penal provisions that one finds available, and it is simply about the factual observation that in the majority of cases statutes which prescribe acts which Parliament has regarded as cruel to animals contain sentencing options which include the sentence of imprisonment. Parliament is entitled to conclude that a power to imprison may be necessary to deter and punish those who are seriously irresponsible and who break the law on many occasions. So it seems to me that Parliament will want to ensure that the range of sentencing options available enables the entire range of factual situations that come before the court to be dealt with, from a fairly minor first offence, on the one hand, to serious recidivism on the other.
MR PATCHETT-JOYCE: Can I make a couple of quick points in response to what Mr Nardell has said? The first is in relation to assessment of responsibility. Tribunals are very, very well-versed in making such assessments. One of the fundamental concepts in VAT legislation is an assessment of best judgment so far as the VAT officer is concerned. An assessment of best judgment is very, very often challenged in front of a tribunal, the tribunal has the expertise to make exactly the sort of fine judgments that need to be made in that context.
THE CHAIRMAN: Are those local tribunals?
MR PATCHETT-JOYCE: There is a VAT tribunal in Manchester and there is a VAT tribunal in London. I am not too sure about the position in Wales, there may be one there.
THE CHAIRMAN: The point is they are not local tribunals.
MR PATCHETT-JOYCE: They are not local tribunals because the issues of best judgment are not judgments which, in the VAT context, need to be tied to the geography or the topography of a particular locality. There is not the need for the locality because the locality is not a relevant consideration in VAT, but best judgment certainly is. Mr Nardell raised sentencing options, very briefly, but I am not too sure whether they are within the remit of ways of applying the principles but, of course, I agree with him that it is a matter for Parliament.
MR OPIK: Minister, if I could ask a supplementary and then Peter Luff's main question afterwards, if that is okay? Would it not be possible to get the best of both worlds by having a tribunal but one for the whole of England and Wales, say? The reason I say that is because if indeed you have a VAT tribunal in Manchester, that is about five million people, yet there is only a matter of thousands of people, perhaps tens of thousands of people, involved in hunting and, therefore, as a tribunal or a central authority you can make those decisions and apply the legislation which, as Gordon Nardell has already said, would be rounded up to be consistent with the whole of England and Wales, and would provide a structure to achieve that - perhaps through something like what was called the Donahue amendment, which would make an offence of unnecessary suffering - and the tribunal, or central authority, could make a decision. I seek your views on that, and then we will go to Peter's main question.
MR NARDELL: I suspect it is impossible to avoid this question of at what level the assessment of balance between cruelty and utility ought to be made. It seems to me there is a world of difference between the legislative function of striking that balance and setting up a new framework on the one hand and applying it on the other. It seems to me that certainly the pattern of legislation on animal welfare over many years is that Parliament has taken it upon itself the task of making a judgment as to what is to be regarded as cruel, to what extent it is appropriate to make expectations.
Having struck that balance and created a legal framework, in a sense, the identity of the body or authority before which the law is enforced is, perhaps, a secondary issue. Mr Patchett-Joyce in his paper suggested tribunals with a local knowledge had a role to play and I agree, and he made the point that one has a ready-made number of such tribunals in the magistrates' courts. The point picked up by the question is at what level should the legislative decision - the essential question of balancing this legal argument between cruelty and utility - be taken. The legislative pattern has been that Parliament has taken it upon itself.
It is an issue that is decidedly odd and certainly a novel and curious contention to find some other particularly local tribunal being given the task. Perhaps it is a helpful exercise to ask oneself, what would the legislation look like to give effect to that. I could try and draft it in my head but it would be very curious legislation. It is very difficult to draft a provision but it may be along the lines that a person commits a criminal offence if he performs an act which is prohibited by a decision of this body and is not the subject of an exception created by a decision of this body. It would be delegating a very large mass of decision-making power on a controversial and difficult policy issue that so far has been the subject of national debate - the Burns Inquiry and these hearings - which pre-supposes that it is national government that has, in the first instance, an interest in deciding what its policy is going to be and put those matters to Parliament.
MR PATCHETT-JOYCE: I think Mr Ôpik's proposal is a perfectly reasonable proposal amongst a range of possible proposals. I think that is what we are essentially doing and identifying now. I am not saying that my proposal is the only proposal, nor are you saying that your proposal is the only proposal. So what we are looking for is the optimum mechanism. I have thought quite long and hard about whether one could have national or regional tribunals rather than local tribunals. Certainly so far as cruelty is concerned, because it is a universal standard, I can see arguments in that respect. But we are not talking simply about cruelty, we are talking also about utility. It is at the level of utility where the devolving down to the proper level for making the decision, to my mind, comes in. That is why I have erred in favour of local tribunals - for that reason - because a local tribunal is best placed to determine issues of utility and is equally well-placed to determine issues of cruelty. I am not saying that a proposal for a regional or a more generalised tribunal system is wrong, it is a matter for discussion.
MR OPIK: Thank you. I implicitly, I suppose, in my mind see the authorities as being like a regulatory body rather than enforcing a prohibition, but I think that is useful because it sets the framework.
MR LUFF: Can I move on completely? I am still not clear quite what is being suggested, but I think we have thrashed it around enough. Can I ask about applying the principle of cruelty in legislation. What struck me about your evidence (I think it was Mr Nardell) was that you have to have intent in the legislation. What we had yesterday was all the expert witnesses who are concerned about animal welfare saying that intention and motivation were irrelevant considerations; what mattered was the cruelty actually caused to the animal. I think, from memory, that provoked a unanimous response among all the witnesses. So we have barristers ----
THE CHAIRMAN: See if you can get a unanimous consensus reply from these witnesses!
MR LUFF: What is interesting is that the Scottish legislation does not ban hunting with dogs, it bans the deliberate hunting with dogs in Section 1 and Section 2 goes on to say that where a dog is used to flush a species, for example, the person using the dog does not commit an offence by virtue of the dog killing that wild animal in the course of the activity. So, in other words, the Scottish legislation seems to reflect the view expressed by Mr Nardell but seems to contradict what the animal welfare experts say is in the interests of animals. How do we apply this principle of cruelty?
MR PATCHETT-JOYCE: I think there is a little bit of confusion in the way that the matter is being put to us, because there is intention as an element of hunting, which you have identified, by reference to Section 1(1) of the Scottish Act, where the word "deliberately" is expressly put there. Whether you can hunt without it being deliberately intended is, perhaps, a philosophical debate rather than a legal or political debate. There is intention in hunting and intention in relation to cruelty. I think there was a combination of the two in what you were putting to us.
MR LUFF: The point I am making is that what the Scottish legislation seemed to me to say - and I could be wrong - is that if you go out there deliberately to use a dog to kill an animal, that is an offence. If you go out there not deliberately and your dog kills an animal, that is not an offence. The suffering of the animal is the same, the cruelty is the same. You are making a value judgment about the human activity, not actually considering the animal welfare.
MR PATCHETT-JOYCE: What you are trying to get at is what should be banned.
MR LUFF: My motivation is simply animal welfare. To me "intent" is less important than the actual effect on the animal, which is what the witnesses said yesterday. I am saying too much. I will keep quiet.
MR PATCHETT-JOYCE: I am trying to provide a response to what you are saying.
MR LUFF: I want legislation that puts animal welfare ----
MR PATCHETT-JOYCE: I think this is very much back to what Mr Lissack was saying at the outset in relation to cruelty and the definition of cruelty. Simplifying the definition of cruelty - perhaps going back to the Donahue proposal that has already been mentioned - I think is important.
MR NARDELL: I wonder if I can make an observation that perhaps might highlight the distinction Mr Patchett-Joyce has picked up between two things. On the one hand Parliament has to grapple with a question which has a moral and scientific - possibly not a legal - content, namely what is cruelty? What is the act in question that is contrary to animal welfare? Having reached a conclusion on that it then faces the task of deciding - assuming that it is going to give effect by the use of the criminal law - what sort of criminal offence should it enact? Should it enact an offence of strict liability on someone who commits an act, whether or not they intended to do so, or should it be a crime with specific intention?
My understanding has been that in every piece of proposed legislation in England and Wales, and certainly in the Bill which was enacted in Scotland, those promoting the Bill have been clear that it would not be right to stigmatise, to penalise through the use of the criminal law, those whose activity leads to the result of a dog, for example, savaging a fox or some other quarry, with certain obvious results for animal welfare, if that person did not intend that result. There is a distinction between what is cruel and what it is the legislation ought to address. That is the first question Parliament will be dealing with.
The second question is what sort of offence should it create? That may be where the confusion has crept in. Certainly for my part - and my guess is that this is a view shared by Mr Patchett-Joyce - I do not see any reason why legislation imposing a prohibition on hunting should create anything other than an offence of specific intent. Indeed, you will see it is commented in my paper that if one were to make a comment on the way in which the principle hunting offence is framed in the Bill introduced in the 2001 session it may be that it perhaps could make slightly clearer Parliament's intention to create an offence of specific intent rather than one of it being committed inadvertently.
THE CHAIRMAN: Part of my difficulty in maintaining some discipline over time here is that there are a lot of supplementaries arising from the original questions. I am going to run a few minutes late in order to try to be fair. I think what I will need is a very short question and short answers from both groups.
MR JACKSON: Minister, we will limit ourselves to a very brief supplementary question pursuing the line that Peter Luff raised.
MR LISSACK: I wonder whether the panel could discuss the extent to which we could have a combination of legislation and regulation: legislation to address cruelty across all wild mammals and in all aspects of man's interaction with them, which is an over-arching criminal process and, subordinate to it, a regulatory regime where, by reference to local conditions, issues of utility are resolved? To pick up on the Minister's point of the responsible ----
THE CHAIRMAN: That is a long enough question.
MR NARDELL: The expression "discuss" does not bode well for the brevity of answers. If I can give a short answer, there is no legislative reason why, if Parliament decided to do that, it could not give effect to that in legislation. There is a distinction which takes an approach which would perhaps be thought of as a hybrid approach, setting out certain absolute standards but, in addition, giving a regulation-making power to impose additional standards. There is no legislative reason why it cannot be done, but it is a matter for Parliament whether it wants to adopt that approach or adopt a bright line approach, setting out what, in its view, is cruel and what, in its view, is suitable activity but, nevertheless, be permitted because of the Parliamentary view of the balance between utility and cruelty.
MR PATCHETT-JOYCE: I can see considerable benefit in having overarching legislation - to use the phrase Mr Lissack used - in relation to cruelty. There are various definitions and there is now a straightforward definition, and I see no problems there. In relation to a regulatory environment with the local conditions of utility, yes. Can I come back very briefly on Mr Luff's point where I think what he was saying was that unintentional cruelty - a dog accidentally killing an animal - could involve the same measure of cruelty as cruelty through hunting, which is intending. From a legal point of view, the intention that is relevant is the intention of going hunting, not to cruelty, in the distinction that I have tried to tease out.
THE CHAIRMAN: Just to get the language right, it is the suffering that would be the same rather than the cruelty.
MR PATCHETT-JOYCE: The suffering, yes.
MS CAMPBELL McRAE: The question I would really like to ask is in relation to the local tribunal and - you made the point - interested parties. I would like to get some understanding from you as to who you consider to be the expert participants who would preside over a tribunal. Given that we have so many interested parties here today, whether a similar set of interested parties will take part in these local tribunals, and how you would see that being rather confrontational.
MR PATCHETT-JOYCE: I think that so far as the chairmanship of a tribunal is concerned, the problem can be solved by having a legally qualified chair. So far as interested parties are concerned, the landowners, the people who are interested in preventing hunting, the people who are interested in hunting taking place are three immediate categories of people who would be interested parties. I am not saying, sitting here, without the benefit of further reflection that that is an exhaustive list of categories. I know that both Mr Nardell and myself practise in areas of public law and, of course, judicial review is an area where interested parties have the right to apply for permission for judicial review, and the concept of interested parties is not fixed.
MR NARDELL: Perhaps I can give a cop-out answer by saying "it was not my idea".
THE CHAIRMAN: You maintain the idea of magistrates' courts rather than a tribunal?
MR NARDELL: One has to distinguish between the legislative function and the function of .. (Inaudible). In terms of legislative function, traditionally it has been for Parliament to strike a balance between what it sees as cruelty on one side and intent (?), and when criminal law comes to be enforced a magistrates' court is an entirely appropriate forum.
THE CHAIRMAN: Thank you very much indeed. I think we have managed innovation in terms of the very helpful contribution from both of you. I am grateful for the way in which you have given evidence to try and tease out a number of issues.
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Page published: 10 December, 2002