(2.15 pm)

THE CHAIRMAN: Good afternoon and welcome back. I am afraid there is still no improvement in the climatic condition in the room, but we will have to do the best we can. I know there are one or two people who are ready to make points, but I would like to start off the afternoon session by asking Michael Fordham, who is our Legal Adviser, to put two or three short questions. Then I would like to take responses to that and maybe fit in the other comments that you want to make in that context. Thank you.

MR FORDHAM: Thank you very much. There are three points arising from the definitions issues which I would like to explore. The first is this: two of the issues which arise as to definitions have been called "certainty" and "parity". "Certainty" meaning can a clear line be drawn by the legislator; "parity" meaning can a justified line be drawn between what is being banned and what is being allowed? What I would like to ask both sides of the room is whether it would be sensible for the Committee in testing those two issues to ask itself these questions: as to certainty, the question would be whether the provisions would be so uncertain as to have no ascertainable meaning or be incapable of application? That is a possible way of looking at the certainty question. Secondly, as to parity, for the Committee to ask whether the provisions would be partial and unequal or manifestly unjust. My question is simply are those sensible ways to approach those two issues?

MR NARDELL: It is no secret, of course, that those principles are borrowed from the tests which the English courts use in assessing the validity of subordinate legislation in applying the ultra vires doctrine. Of course at the present there is no equivalent the UK courts can take to primary legislation, but it does seem to me that as far as the first question, certainty, is concerned, that that is at least a minimum standard to which legislation should aspire. Can I say immediately though that from the civil liberties background, which I think it is always vital to bear in mind, whichever side of a debate one sits, that we would also be concerned, I think, to ensure that any legislation satisfies, if there is any difference between that and the test I am about to mention, the test laid down under Article 7 of the European Convention on Human Rights by the European Court of Human Rights which essentially is a test of accessibility and predictability. Certainty must be satisfied to the extent that the citizen ought to know in advance before embarking on a course of conduct what are the legal consequence of that course of conduct would be. It may well be there is no real difference between our home spun English law version of that test and the European Convention version, but we are certainly concerned to see any legislation complying with the Article 7 test of certainty and accessibility and predictability. Our position is that the proposed legislation that we put before the Inquiry meets that test, however one expresses it. As far as clarity is concerned, I wonder whether there is perhaps a danger of running into what is meant to be a base test for the clarity or precision, so to speak, of legislation, running into that questions of policy and whether there is a substantial policy justification for legislating one way rather than another. When one looks at legislation, very often one is at a loss to find the precise policy justification for a decision being taken one way rather than another in the context of criminal law, for example, for one exception being phrased in a particular way, if you take one kind of conduct outside the scope of an exception but retain another within it. That in a sense is inevitable, given that the legislative process in this country involves decision making by compromise in many cases and one often struggles to find a clear unbroken thread of policy through the final version of legislation. In terms of finding a comprehensible policy justification behind every distinction drawn by legislation, it may well be that one has to accept there are limitations.

MR FORDHAM: Do you have an alternative way of testing in simple terms whether a line is being drawn in a fair way?

MR NARDELL: I do, and I will put it in exactly the way you propose, except I would make it clear that is a test in dealing with the base acceptability of legislation as a piece of legislation. It is not necessarily going to be a reliable test for analysing whether there is an underlying policy theme which can justify every distinction that has been drawn by a piece of legislation. As we all know, legislation is often a product of compromise of what is sometimes disparagingly called "deals" in the context of the political arena. Very often it is difficult to avoid that sort of (inaudible), but in terms of a test of the validity of the way in which a distinction drawn by legislation is expressed, I would have no difficulty at all with the way in which you suggested it. Essentially it is about avoiding arbitrary distinctions between classes and that is perfectly consistent with the way, for example, the European Court of Human Rights would approach that issue.

MR FORDHAM: Mr Lissack, would you accept that is a sensible way of looking at the issues?

MR LISSACK: Yes. I am tempted to stop there. I think it is "yes" with an important qualification. As to certainty, it is "yes" to the test that you propound, both as to certainty as an expression and certainty as to scope. As to the activity that one is seeking to gauge by the yardstick that you have promulgated, it must be all activities which are reasonably likely to be caught, not just the obvious Saturday meet of the Beaufort Foxhounds with 200 people on horses in funny clothes; that is obviously caught by anything that could conceivably be defined as hunting, but with those two riders, yes. As to parity, I have nothing to say but yes, and it is.

MR FORDHAM: The second topic takes us back to the Foster bill which, you will remember, had a definition which was deleted by the Select Committee. There are obviously two ways of looking at that. One is that it shows that you need a definition but it was impossible to come up with one, and that is what has been suggested by you, Mr Lissack. The other way of looking at it is that that shows that it is not sensible to have a definition; it is better to have the natural meaning of the words, which is your position, Mr Nardell. What I want to raise with you is a plea, and it is this: we have about 180 pages of Select Committee Hansard extracts. If, as a matter of history, you say there are any passages in those materials which help us to identify which in fact is what the Select Committee was doing, whether it was deleting because a definition was unnecessary, or whether it was concluding that there was not a workable definition, could you -- and I am not suggesting that you do this now -- but if you say that there are passages that the Committee should be looking at specifically, could you please make sure that we have them. Thirdly, and finally, this is a question for Mr McWhirter, if I may, and it is this: as I understand it, in the Protection of Badgers Act 1992 and in the Wild Mammals Protection Act 1996 a boundary is drawn between conduct which is criminal and conduct which is not criminal on the basis of whether there is obstruction of a badger set for the purpose of hunting foxes with hounds; that is the Protection of Badgers Act 1992, and in the 1996 Act the killing in a reasonably swift and humane manner of a mammal taken in the course of lawful hunting, et cetera. My question was: do you have any observations you wish to make about the policing difficulties that you identified in relation to the bill as regards those two pieces of legislation which are in force? In other words, do they give rise to the same sort of difficulties that you were concerned about?

MR McWHIRTER: If I may answer that. No, they are actually so rarely dealt with that they have not caused difficulties that I am aware of. I would have to do more research before I could answer that question fully for you and I am very happy to do that, but it is the wideness of the potential for the exceptions that concerns me in relation to the proposed legislation.

MR LISSACK: Could I just say I have some information on the point which Mr Fordham has just made, which may or may not help; just for reference for anyone who wants to look at it. So far as I know, there has been one prosecution in relation to a pack of foxhounds in relation to the Badgers Act. It was the Duke of Beaufort Foxhounds, the conviction being quashed in the Divisional Court at the decision of Simon Browne LJ five years ago. That is the only instance, I think, where hunting has interfaced, if I can use that phase, with the Protection of Badgers Act 1982.

MR NARDELL: Can I just ask a short question really just in terms of timing of any material culled from these rather voluminous Select Committee debates? Presumably the request is not that we necessarily have the references available by the end of today, but perhaps one can ask what the timescale might be?

THE CHAIRMAN: Well, three or four days.

MR NARDELL: No difficulty at all.

THE CHAIRMAN: End of the week. Mr Jackson, you had some points. I wonder if your colleagues would like to make.

MR JACKSON: Yes.

SIR GEOFFREY DEAR: Lord Burns, you may remember when I introduced myself that I told you that I had retired from policing nearly three years ago and, in saying that, I was hopeful that my views on this issue were not out of date and in fact, having listened to Mr McWhirter and, indeed, having spoken to him in the margins during today, I am pleased to say I am not out of date. What I would now like to say to you very briefly is said from the benefit of being able to be less small "p" political than I would have done had I been in office. What I would have said, and it has been laboured and I will not take any more of your time up, other than to say I too of course subscribe to the view that the police would be deeply opposed to legislation which is unclear about. We have spent a lot of time over this -- everyone in this room I suspect is of the same mind. If legislation is not precisely clear, certain identifiable, it becomes almost unenforceable and there are many examples of that in the past. The Obscene Publications Act is but one, which is still on the statute books but which is only, I venture to suggest, enforced at the very most serious end of indecency and obscenity and the rest is left largely to public opinion, and many would say, I think, whether they are liberal or not in the accepted sense of the word, that the law has been and remains in a mess because it is so difficult to draft legislation which captures what is in the mind of legislatures. I wanted though to focus on one thing that Mr McWhirter said and I hope he will not mind me picking on this point and, indeed, putting words into his mouth. I am sure in fact he will agree with what I am going to say. He did say in passing that if we can find our way in this inquiry into a position where legislation comes on to the statute book, then he said the police will enforce it. I would venture to suggest that that needs a slightly closer examination. Enforcing all legislation which comes on to the statute book is, of course, a purist approach and one which the police as a sort of stock answer would say, "Yes, we always do that", but of course the reality is very different. For a start, I make three points: there is the question of limited police resources. That is an argument which exercises the minds of chief constables and of ministers at the Home Office and many others and is a problem which is not going to go away. Police resources are strapped for cash and will become more strapped, and the accordance of priorities in policing, therefore, is a fact of life, has been for some time and will continue to be so for some time. Examples, one very minor one first: one has only to think back to 30 years to the time when all bicycles had lights on, bicycles were not ridden on the footpath and so on and so forth, and now you see exactly the opposite happening. It is because the police for a long time now have set priorities higher than cyclists, rightly or wrongly. Much more to the point, there is an ongoing debate about cannabis and the personal use of cannabis and the enforcement of the law there. One more example, I would venture to suggest, of the police according priorities which they have done, will do, are doing now and will be forced to that mode more and more as governments set more particular key performance indicators and requirements of measurement on the police. My view from recent retirement is that the enforcement of law, any law, prohibiting hunting would come fairly low down that list of priorities and you would be driven to a position very quickly where chief constables were taking different views -- and they are independent; there is no such thing as the police view. 43 Chief Constables in England and Wales; 51, I think it is, if you include Scotland and the Isle of Man, would be taking rather different views on their orders of priority and that would create a patch work. Secondly, with respect, I would direct you to the fact that the police can choose to ignore cases all together. Two cases on that, ex parte Blackburn in the mid-1960s, Blackburn 1 and 2, which said in short terms the police cannot agree in advance amongst themselves to ignore the enforcement of a statute in totality; they must look at it case by case, but, having identified the attendant circumstances in each case, they can then ignore it, which is really another version, I suppose and I suggest, of according priorities. I think there is very good reason to believe that that would happen more often than not. Lastly, a point which Mr McWhirter has already made, and that is that in this country, more so than any country I believe in the world, policing has to be by popular consent. The ratio varies very slightly in this country. At the last count I think it was one police officer to 435 members of the general public. That is a far wider ratio, fewer police, than anywhere else that I know of in the developed world, and that means that the police have to carry very solid public support for anything that they do. I would suggest that the division of opinion over this issue is so great, particularly in rural areas, that the county forces at least, and I speak with some experience of those, would measure their response very carefully indeed before they started taking action; in other words, to put it in another way, would do their level best to get away from enforcing it if they possibly could. One example, and I have no licence or authority for saying this, but I guess that the relationships in Norfolk and the Cambridgeshire borders at the moment are so strained between the police and members of the isolated rural communities that the last thing Chief Constables in those sorts of areas would do at the moment is to enforce the law on hunting if they could possibly get away with it. What I say to you, therefore, is that this is a mixture of legislation, or would become a mixture of legislation which has within it a very substantial, it seems to me, moral ingredient. The police in this country are singularly unwilling to enter into action where morality alone is the issue. I can only say this to you, Lord Burns, that if I were still Chief Constable I would greet any legislation, even absolutely certain legislation, with a degree of dismay if I were asked to enforce it and would certainly not see Chief Constables enforcing it with any alacrity and, indeed, many would not enforce it at all, or only in spasmodic manners.

THE CHAIRMAN: I can see you might not be terribly enthusiastic about this. But in the case of many of the hunts around the country where the meets are publicised, where there are demonstrators present and, indeed, the police are often present to ensure fair play follows, I find it difficult to believe that there can be any problem about enforcing that. It is quite clear, if you go to a meet of the Devon and Somerset Staghounds. It is very difficult to believe that they are engaged in anything other than an act which would be prohibited under this legislation. Are you saying the police would have difficulty in doing this?

SIR GEOFFREY DEAR: I think they would. I think if legislation came on to the books, and here one enters the realms of hypothesis, many hunts, for example, I believe, would not publish in advance publicly where they were going to meet. You would rely on pretty good intelligence as a law enforcement agency to know where they were going to meet. They would meet clandestinely, presumably, and hunt. I think that is a very real possibility. That being the case -- and I take your point, if it is in the newspaper you can get hold of it readily, then you go there and try and do something about it, even if it is only cautioning people not to do it again, but if it is clandestine, then I can see a whole new episode opening up and it becomes very difficult. To use the vernacular, I think it goes into the too difficult basket so far as policing is concerned, given the massive pressure on other priorities.

THE CHAIRMAN: I could see your point and your comparison with cannabis and cycling in relation to informal or unofficial coursing or certain types of small-scale activity. What I find more difficult to believe is that there are the same problems associated with the substantial organised hunts which involve large packs of hounds. That does not seem to me to be a similar situation at all to the isolated bicycle or from the person smoking cannabis at a party. This is all being carried out in the countryside in large numbers in view of quite a lot of people. I need to be persuaded that the enforcement problem is as great.

SIR GEOFFREY DEAR: Since you mention cannabis and parties, if you go to any large pop festival, you will find cannabis being smoked openly in very large numbers with the police watching because the problems of enforcement are just not worth the effort; one example and I can give you others.

THE CHAIRMAN: I am in danger of breaking my own rules. We did say in the agenda that enforcement is not the primary concern of this seminar, but I would like to give an opportunity for response and then maybe move on. I would like to move on quite quickly afterwards. I apologise for my own part in prolonging this.

MR THOMAS: I will make it as brief as I can, Lord Burns. A lot of the discussion we have had over the last hour or so either side of lunch has preceded on a premise which I think we should make it clear on this side of the room we simply do not accept; that is that this legislation, this bill, which is now before the Committee is in any way uncertain. We do not accept that premise. We think it is certain. We have the advice of three leading public lawyers that it meets the European Convention test of certainty and provision and so forth. But, equally, we are not fixed in our views. We are happy to take points on instruction, on points of policy, and the fact that the bill, as any legislation, must be made capable of improvement is not a reason not to legislate in a way that the public clearly wants. On the question of policing priorities and resources and so forth, of course one accepts that the police have to allocate priorities, have to allocate resources, but what I find deeply disturbing, and particularly disturbing since this argument came from a former Chief Constable, is that where the argument seemed to be leading was because the police so it is assumed, though we do not know, will accord this legislation low priority, therefore Parliament should not legislate in the first place. I find that a deeply unconstitutional and worrying argument. It is for Parliament to decide what should be on the statute book; not the police through allocation of priorities and resources. To take the examples that Sir Geoffrey made, the low priority given to enforcing the law that says that you have to have lights on when you are cycling, it may indeed be a low priority for enforcement, but is he suggesting because of that there should not be a law which says you should have lights when you are cycling in the dark or, indeed, more controversially, as he said, the fact that cannabis may not be enforced in lots of venues or lots of police areas perhaps, is he suggesting therefore it should follow that we should not have a law that prohibits the smoking of cannabis? The final point is that we have to assume and we have to be entitled to assume that if Parliament does legislate in any particular way on any particular issue, that the vast majority of people will respect that and will obey laws, as we all have to do with which we may passionately disagree.

THE CHAIRMAN: I think first of all Mr Lissack.

MR LISSACK: Can I just say two things? Firstly, I recognise in paragraph 3 of your letter of 25th April you said: "This was focused on legal rather than enforcement issues. They recognised there was an overlap, hence the presence of the Inquiry's invitation of the Assistant Chief Constable of Wiltshire." I understand that and therefore I am not trying to lead the Inquiry into the waste of any of your valuable time. All I would like to say is two things. First of all, there may have been a misunderstanding, perhaps, between the Committee and Sir Geoffrey. Of course if hunting remained as visible and obvious, as I said myself earlier on, it is readily discernible to be hunting and readily amenable to policing, but it begs the question of whether it would, this all being predicated on the basis of a ban now being in force. Whether it would remain visible or not, what would be difficult to "police", would be the unregulated, the covert and, therefore, perhaps the most offensive activity of the lot. The second point I make is this: it would be very helpful if at some stage, if you think it appropriate, that Mr McWhirter, either privately or through you in open session, indicates the extent to which he disagrees with the way in which we put the policing points, as I called them in our paper, between 3.10 and 3.13 in our submission. That is all I say about enforcement.

THE CHAIRMAN: Thank you.

MR McWHIRTER: Sir Geoffrey, when he referred to me earlier on, described me as his "late colleague". I am fairly alive and also fairly up on the enforcement issues. It has been interesting hearing people who are not policing at the moment talking about the enforcement issues. From our perspective I said very clearly at the beginning of my earlier piece, the police would enforce the legislation and if it was on the statute books we would enforce the legislation. How we would enforce it would be based on each individual case as it happened. The picture you create, Lord Burns, of mass protests, because I think it would have to be mass protests if people still continued to hunt in large groups and I think it would become mass protests, would be like policing a large demonstration or a protest now and it would become very different from policing what I envisage would be much more likely to happen, which is clandestine small groups of people, probably on their own land or on land with the permission of the landowner so they would not be like poaching as we have now. I suspect that much of the time the police would never know that it is happening, because what happens in rural countryside we do not know about unless somebody else tells us. The reason we know about poaching now is because landowners or their agents, or people living on the land who know the land well, will tell us about it and I cannot envisage that if a landowner was giving people permission or, indeed, hunting on his own land, that we would get to hear about it. So in terms of the problem it really depends on the response to the legislation. At the beginning I suspect there would be protests and there would be difficulties for us to enforce, but I do not agree with the Countryside Alliance's comments -- I think it is 3.11 -- in the sense of it becoming such a huge burden for police forces, even county rural police forces like my own, to enforce this piece of legislation. I cannot see that it is such a big issue that enforcement would be that problematic; I can envisage problems in individual cases; I can envisage problems over decisions about whether people are hunting or not. Despite the fact it may be clear from their intention, I think that a large number of opportunities for people to have exceptions to it would make it very difficult to define. I also think that we are going to have difficulty with powers on entry on to land and I think those who see, as they do now, people walking in the countryside carrying a gun, for example, we frequently get calls to say, "I have seen a man with a gun" and some people expect us to deploy a firearms team to deal with that, but that is just living in the countryside; that is actually part of normal life. Somebody seeing somebody walking with two dogs may now result in calls to the police saying, "There is somebody out hunting with dogs" because the dogs are running. I can see difficulties with that and the deployment of resources which are being used for other things. We have, as Sir Geoffrey says, been set testing targets for crime reduction and when it comes to crime reduction, clearly we will have to prioritise as to what we are going to put resources into. This would be a summary offence, albeit one with a power of arrest attached to it, and if other offences which hit the Government's targets more clearly were being done, I can see where people in control rooms would set their priorities.

MS NEWMAN: I would just like to speak with my head of prosecutions at the RSPCA hat on for a moment and that is to correct a possible assumption that is going round the room at the moment that the countryside is presently free of all wildlife crime. It really is not. To suggest that hunting being banned is suddenly going to cause a problem for the police, there are a number of covert activities happening in the countryside: badger digging; cock fighting still goes on, and cruelty to animals in the countryside. We have seen in recent years a change, a very significant and positive change, in the policing in the creation of police wildlife liaison officers in every force and their commitment to enforcing wildlife crime is very strong at the moment. There is the partnership of Action for Wildlife Crime working with the Government and the DETR. I think it is very positive and I really do not see that banning hunting is going to cause any greater problem for the police than already exists in terms of poaching, deer legislation that goes on already.

THE CHAIRMAN: Thank you very much. The next issue is the procedures and remedies available in the event of an alleged breach of the legislation. Are there any points that either side wish to raise on this?

MR LISSACK: No. We set out our position in our paper. The one matter which does spring, post the writing of the paper, from the provision of the draft bill is that you will have noticed in clause 3(2) of Mr Nardell's bill the right of entry on to land to exercise a power is preserved. I merely underline that because it is something that we deal with in our paper, as you have already been good enough to read. It is without precedent to give that sort of power to the police and, therefore, I merely underline that the point survives to give the police the power that is proposed is extreme.

MR NARDELL: I wonder if I might respond briefly to that? Among the papers which were provided to the Inquiry this morning, merely to supplement the otherwise extremely helpful and complete bundle that has been prepared, was an extract from section 19 of the Wildlife and Countryside Action Act 1981. May I just enquire whether that has found its way, Lord Burns, to you and your colleagues? My learned friend Mr Lissack has a copy. I hope that the photocopying gremlins have not got into the works. I would just like to draw attention, if I may, to subsection 2 of section 19. Subsection 1 is in very much the same terms -- indeed one might be forgiven for thinking it is very much the inspiration for clause 3.1 of the draft bill and it provides a number of specific powers. In the case of the 1981 Act, short of arrest provides a number of investigatory powers to a constable. Subsection 2 goes on to say: "If a constable suspects with reasonable cause that any person is committing an offence under this part [that is that part of the Wildlife and Countryside Act] he may for the purpose of exercising the powers conferred by subsection 1 enter any land, other than a dwelling house, also for the purpose of arresting under the relevant provision which is the Police and Criminal Evidence Act 1984." It simply is not accurate to say that this power is unprecedented. That is the long and short of my submission.

MR LISSACK: I am sorry, the response is inaccurate. I do want to get on, but we must keep this accurate. My learned friend makes a point which actually does him no favour in fact in helping you. If you have section 19 in front of you, you will see in section 19(1) there is the provisions set out in those two lines: "Any person is committing or has committed an offence." Subsection 2 is limited to "is committing the offence"; in other words, given unto the police under this provision is the right to in hot pursuit of an offender go on to land whilst an offence is being committed, not has been committed. Conversely, if you glance at 3.1 and compare with 3.2 of my learned friend's bill, it is "has committed", "is committing" or "is about to commit", so it is a completely different and much more wide-ranging power.

MR NARDELL: If I may say so, the question whether there ought to be an anticipatory power on the police is a rather separate question which we would be delighted to deal with if there remains any difficulty about that, but in terms of the description of the power, we are quite happy to treat the Wildlife and Countryside 1981 as a more than adequate precedent.

THE CHAIRMAN: I think that was quite helpful in dealing with that issue. Can we move on to the ECHR questions. One might be forgiven for thinking we had been filibustering to avoid getting on to the ECHR questions because anyone who is not an expert in ECHR matters in my experience struggles somewhat. I came across this during the course of the pre-legislative scrutiny of the Financial Services Act and I found it pretty testing. The question that I begin with goes back to the issue that we debated this morning, which is the extent to which you need objective evidence in order to sustain the position. We have these phrases about general interest, the protection of morals. How far do they require that one should be able to demonstrate, not simply that people think that something is wrong, or they suspect it is wrong, or they believe that it is wrong, but that you can actually show that it is wrong. In other words, how far does the application of this depend upon what we described this morning -- and I know some did not like it -- as the notion of objective standards rather than subjective standards? When I looked at the opinion we had from the three learned experts, led by Mr Pannick, was this sentence at the end of paragraph 16: "We are instructed that the evidence is that the reason why people object to hunting with dogs is not simply...", et cetera. Let us take that sentence. Supposing that that sentence had actually been drafted in a different way. Or that, let us say, one misses out the last two words, "and cruel", so that it is simply that they do not approve of it, they do not want others to engage in it, they believe it is morally wrong. Is that sufficient, do you believe, from the point of view of ECHR purposes, or do you have to underpin the notion of morality by something that is more evidentially based?

MR THOMAS: Our response to that, Lord Burns, would be this, I think: first of all, morally wrong and cruel are of course very closely interconnected. People believe it is morally wrong because they believe that it is cruel. If they did not believe that there was animal suffering, then they, one presumes, would not believe that it is morally wrong. The specific question about objective evidence. The history of anti-cruelty legislation, if I can use that term, in this country, going back to the 19th Century, not just in relation to animals but in relation to cruelty to people, to children and so forth, I think I am right in saying was all passed without any scientific empirical evidence of the sort which I think that you are now referring to. Now in the European Convention of Human Rights terms, we believe that the answer is that it is not necessary in order to satisfy the various tests under the Convention, assuming that there is a right which is engaged in the first place, that it is necessary to have that degree of objective justification of scientific justification. Of course, where there is such evidence and where there is the ability to have such evidence, then that is helpful and it goes into the equation and it goes into the equation in particular of the reasonableness of the belief. So we are not talking about mere prejudice; we are talking about a belief that people have and the Parliamentarians have, having looked at the evidence. We would say that in Convention terms and, indeed, in commonsense terms, it is not necessary to have that degree of scientific investigation. There is nothing in the case law of the Convention which indicates the contrary.

THE CHAIRMAN: Supposing that some time in the future -- and this is entirely hypothetical -- somebody was able to come forward with a convincing study that showed that shooting of deer actually caused more problems than hunting of deer. Would that undermine the position here, or, would nevertheless, the fact that people still feel that it is morally wrong and that there was still a Parliamentary majority that thought it was in the general interest, be sufficient for the purposes of protection under the ECHR? Or would my defence be that I now had some scientific evidence that showed that the underlying belief was wrong. How far would that get me?

MR THOMAS: I think in overall policy terms if it were ever possible to establish at any time in the future that any particular activity which is covered by cruelty legislation, whether it is to animals or to human beings, if it were possible to prove conclusively that, contrary to whatever one had thought, there was in fact no suffering in its broad sense, including mental distress as well as physical suffering, then of course the whole basis of legislation which was driven by a desire to eradicate cruelty would begin to fall away and that would have implications for the Convention arguments as well. It is such an unlikely and unreal scenario, as things stand at present, it is much more likely in my respectful submission that science will develop in order to prove conclusively or very nearly conclusively that suffering is involved rather than the contrary.

THE CHAIRMAN: Okay, but let us move on with the hypothetical. Maybe that is in an extreme position. But supposing that my defence was that the case was open, that you just could not demonstrate this, and I went to the court on that basis? Although I could not prove the contrary, what I could show fairly convincingly was that the case had not been demonstrated, does that begin to enter into a justification for claiming protection under the ECHR?

MR NARDELL: I wonder if I might assist with an answer to that question? Perhaps the most helpful way of answering is to perhaps shed a little bit of light on the principles which the European Court of Human Rights uses in deciding whether a legitimate aim has been made up by a state. It will not come as news to anybody that the principle underlying the test that the European Court adopts, for example in deciding whether an interference with rights under Article 11 or Article 1 of the first protocol has been interfered with to an improper extent is the test of proportionality. Essentially what a judge or legislator applying that test has to ask himself or herself is that given that a particular legitimate aim may support some restriction on an important right, does it support this restriction? Clearly at the heart of the equation in many cases is the cogency of the legitimate aim. There is relatively little material in the jurisprudence of the European Court of Human Rights on the question of the difference between an aim which is legitimate and one that is not. However, there are some clues in the principles that are adopted and the first is this and it is a general proposition about the way in which a court applies the proportionality test and applying the European Convention has to deal with issues. Inevitably one is not dealing, when applying a proportionality test, with the question of whether a fact can be proved beyond reasonable doubt or to a particular standard as one would trying primary fact in a civil or criminal case. Rather what a court or legislator is looking at is what is sometimes called "evidence of social fact" and even that may be something of a misnomer, because very often the sort of material which a court is taking into account is not so much verifiable fact as evaluation. One example is in the way that the proportionality test has been applied in a slightly different field, namely European Community employment laws. The courts have just had to consider the question whether it is a disproportionate interference with the right to equal treatment, but there is a differential qualifying period for part-time workers and full-time workers in relation to qualifying to claim certain statutory rights in relation to employment. The test adopted by, in this case, the European Court of Justice is the European Community version of proportionality. Essentially the arguments are about as far from the traditional arguments one encounters before a court as one can get. Effectively the courts are trying what are really economic arguments. Is the difference in treatment of groups of part-time and full-time workers which creates a disparity in gender terms, because women are disproportionately represented in the group that have to work the longer qualifying period, the court asks itself is that necessary in terms of the labour market? Will there be a shake out of jobs, or if there will be a shake out of jobs, nevertheless should we put up with that? The sort of evaluation the court is doing under the guise of expressions like fact is rather different from the sort of traditional judicial exercise in evaluating whether a fact is objectively verifiable or not. Specifically in the case law of the European Court of Human Rights one most recent attempt that I am aware of to argue that there was simply no legitimate aim, not that the legitimate aim was not sufficiently cogent to justify an interference, but there was simply no legitimate aim for an interference, was in an Article 10 case brought against the United Kingdom called Brind -v- The United Kingdom, some domestic legislation which produced, for human rights lawyers at least, a rather infamous result, but at Strasbourg the argument was taken that the restriction on Article 10 rights in that case, which is that journalists, you may remember, were prohibited from broadcasting live speech along with images of members of certain organisations active in Northern Ireland, so one had to have Gerry Adams, for example, dubbed to a speaker. My recollection is the accent was usually done pretty appallingly, but it was suggested at Strasbourg that that was not a legitimate aim because it could make so little inroad into the fight against terrorism that it simply was not worth the candle, if I can put it in that way. Strasbourg rejected that argument. What they said was the cogency of a particular legitimate aim is of some importance, but so long as the Government in good faith had identified a particular aim as legitimate, that would pass muster so far as the European Court is concerned. So it is a question of good faith. That is a rather different test from where the facts are objectively verifiable; in other words, provided the legislator in good faith is motivated by a desire to prevent animal cruelty and all the more so when the majority in society whose views the legislator is purporting to reflect sincerely hold that view. It is very difficult to pull the rug from under the Convention test at that first hurdle and suggest that there is simply no legitimate aim. The extent to which there is verifiable evidence may go to the cogency of that legitimate aim, although in this case possibly not, but it would certainly not go to the existence of whether there is a legitimate aim, whether there is some general interest, if there is one, which can support what would otherwise be interference of rights, if there is one. Although that is a somewhat round the houses answer, these are not straightforward matters largely because in involves getting accustomed to a rather different way of looking at legal problems, but I do hope it will cast some light on the task that the Committee has set itself. Perhaps it will now wish it had not set itself that task. It seems to me it is relevant to take that material into account.

THE CHAIRMAN: I will be surprised if the Committee seeks to take the definitive position on this question. But we will do our best to report what we believe are the issues and what are the major issues that divide people on this.

MR LISSACK: Lord Burns, the answer to your question is "yes". The question which was posed, not a block ago but a whole city ago I think we have just been round, was do you require objective evidence to sustain the proposition? The answer in our submission is "yes". That said, I think there is a good deal of common ground between both sides on this. Can I see if I can reduce it to a few simple propositions that are agreed between the parties. First of all, that there is almost no authority on the point. Second of all, that there is as yet no law in place domestically because the European Convention on Human Rights is still not part of our domestic law. That follows, therefore, that there is so far no case law in this country on how it will be treated under the new Act as of 2nd October. Thirdly, once you have been on the Judicial Studies Board course and you have the T-shirt and the handbook, you are instantly an expert in human rights. Fortunately to my right is someone who really is an expert in human rights; I do not mean any disrespect to the other side. What I mean is you can set what I say to one side, if you like. Thirdly, it is very important -- I am sure we both agree; both sides would agree this -- not to try to resolve this issue, even if you felt inclined to, by soundbite. I lifted phrases in the five minutes I had on the subject on 10th April from the cases. The same phrases have been trailed again today and they are contained in Mr Pannick's opinion, but each is pregnant with a set of special meanings to each word and it is very important, therefore, to look at this in as cool and considered and dispassionate fashion, as Mr Patchett-Joyce will do in a moment, for reasons he is peculiarly well placed to do to for reasons he will explain, and to consider the reality of the position. The reality, as you would expect, we submit to be this: if you are going to ban something, you must have a good reason for doing it or it offends against the rights of the individuals affected. If it offends against their rights and proscribes activity hitherto lawful without compensation, there is a deficit or a loss to them and you need a basis better than some people do not like it, think it is morally wrong and offensive and want it banned to reach that state. I wonder whether you would be much better helped than by my going on any longer than the minute or so I have been on the point by listening to Mr Patchett-Joyce briefly on the question you have posed.

MR PATCHETT-JOYCE: Sir, as I formulated it, there is one principal question and one subsidiary question flowing from that principal question. It may be convenient if I enunciate what I understand to be the principal question and the subsidiary question and then go back to answer them.

THE CHAIRMAN: You can put the questions better than I can.

MR PATCHETT-JOYCE: I doubt that, and I will rely heavily on the phraseology that you used in posing the first question. Sir, the first question, as I understood it, was whether the European Convention on Human Rights test was satisfied on the basis of belief, i.e. subjective belief, or whether that test had to be satisfied on an evidential basis; in other words, an objective evidential basis. Sir, the subsidiary question that you went on to pose was on the assumption that the issue on the evidence is open what then is the position under the European convention? Sir, so far as the first question is concerned, the opinion of Mr Fitzgerald in paragraphs 14 and 16 makes it quite clear that it is an objectively based test, and the one word answer that you have already had, "yes", holds true. Sir, may I explain very briefly why I believe that that test does hold true, and one begins with the structure of Article 8. Article 8 is in two parts, Article 8(1) and Article 8(2). Article 8(1) contains a bundle of rights and Article 8(2) derogation or permitted interference with those rights. So that, sir, if one is looking at permitted interference with those rights, then, in my submission, it becomes very clear that it must be objectively justifiable interference with those rights. Sir, I think that you can test it in two ways: there was much discussion this morning on the question of certainty and the requirement of sufficient precision to be in accordance with the law under the Convention is well established in the Sunday Times and the United Kingdom case. Sir, if one has subjective assessment then, in my submission, one is threatening the fundamental tenet of the need for certainty. The second general principle that I would submit should be considered is the effect of derogation from the right or interference with the right. In the present case the effect would be criminalising of the conduct, and, again, in my submission, it is a bold step to take to criminalise on the basis of subjective approach, subjective evaluation. Sir, I therefore move on to the subsidiary question: If the issue on the evidence is open, what is the position under the European Convention on Human Rights? Sir, in my submission the court in those circumstances would be looking at the matter according to the tests under Article 8(2) for a derogation from those rights, for a permitted interference with those rights and would be focusing on two matters: whether the derogation or the interference was necessary in a democratic society, and one is focusing on the word "necessary"; it is not issues of desirability; it is necessity and, indeed, if you compare and contrast the words "necessity" and "desirability" you have, in my submission, an interesting counterpoint: necessity involves objective assessment; desirability may involve all sorts of subjective assessments. The fact that the emphasis and the wording of the Convention is necessary indicates and points out the need for the test to be objectively based. One is looking at a pressing social need. With respect to Mr Nardell, his analogy -- and I think it is common ground between everyone that analogies are always very difficult to draw -- but the analogy, in my submission, is not exact, because here what one is looking at is the right, which is set out in general terms under Article 8(1), and the limited permitted derogations under Article 8(2). So I hope that that assists both in relation both to the primary question and the subsidiary question which I discerned in the course of what you are putting to both sides.

MR THOMAS: Can I come back very briefly? When the question was originally posed this morning, Lord Burns, I bridled a little as to the use of the word "objective" and I think, having heard this discussion, I was right to do so, because I think there is a danger of equating objectivity with scientific proof. We would accept that the belief that is required before the legislature can justify where it is necessary for it to justify; in other words where a Convention right is engaged in the first place, that that has to be based on a belief which is reasonable. Now, in that sense that is therefore an objective criterion. It is not mere prejudice; not based on any evidence at all. So I would define objective to mean scientific evidence, of course, but in addition criteria such as observation, such as experience, such as commonsense, and put all those into the equation and if the legislature genuinely and reasonably concludes, even absent conclusive scientific evidence, then that something is cruel; therefore, there is a general interest to be protected in Convention terms, then that is perfectly legitimate. In the opinion there is a reference to a case called James, and I really do not want to get into quoting cases back and forth, but there is a quote which sums it up very nicely. This was a case about where leaseholders have the right to buy their freehold reversion and therefore the freeholder was losing his freehold; so a case of a deprivation of loss of a possession rather than control, which is actually what we would be talking about here, and what the European Court said was that the consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ, the court will respect the legislator's judgment, unless that judgment is manifestly without reasonable foundations, and that gives a flavour of just how low this test is; it is for contracting states to decide and as long as there is a legitimate aim and as long as they genuinely and in good faith arrive at the conclusion that legislative action is necessary, then that meets the terms of the Convention. Perhaps I can finish by asking whether -- because when dog fighting was outlawed and when cock fighting was outlawed, when bear baiting was outlawed, unless I am very much mistaken, there was no scientific evidence to show that those activities were cruel. Is it now being said that the prohibition of those activities constitutes a breach of the European Convention, and if that is not being said, then what is the distinction? MR SWANN: Thank you, Lord Burns. I would like to reinforce some of what David has said to try and shed some light on what we all mean by objectivity and in a scientific context it is very rare that you can prove anything totally objectively. You can look at laboratory results; you can look at post mortem examinations; you can review evidence, and in looking at that evidence you will draw judgments, informed judgments, which are based on, as David has said, experience, professional training, and also consensus of one's professional peers. If you look to science to provide all the answers in a scientifically objective sense then we are never going to have answers to anything; we will never actually be able to prove that we are all sat here in this room, and it can become as ridiculous as that in trying to prove objectively, and I think we do need to be very, very clear what we mean by "objective". I think in respect of interpreting scientific information, the information that we have gleaned with regard to the cruelty which we have stated is involved in hunting with dogs is as objective as it is going to get, because in order to make it more objective would require scientific experiment, which is most unlikely to be licensed under the Home Office terms and conditions given the frivolous nature of such experimentation -- and I say "frivolous" as opposed to activities such as promotion of human health and the promulgation of scientific understanding where it is for human benefit. It is very, very unlikely that our level of knowledge will proceed beyond that which we now have and we have to make judgments on that basis, as we do in almost every case where animal cruelty is alleged, because in dealing with animal cruelty in order to carry out what might be considered as definitive scientific experiments would mean adding to that degree of cruelty, so those experiments do not take place. Having said that, the degree of information that we have on this issue is as objective -- and I made this point this morning -- it is as objective as the majority of cases, in my view, that come to court under animal cruelty prosecutions. Thank you.

MR JACKSON: Can I pick up some of these points later, Lord Burns, particularly the reference to bear baiting, and so on?

THE CHAIRMAN: I was going to make the observation, or it is a sort of question, that of course with dog fighting and bear baiting you do not have the complication that you have on this issue where in part it comes down to alternatives. It is not just a question of looking at the animal welfare position of the activity in question. I think one of the things that has come out of a lot of our discussions is that it is also a question of looking at the activity in question in comparison with alternative means of achieving the same ends. This is a complication which I do not think exists in some of the earlier cases, but I take your point.

MR THOMAS: I think that is right, but if one accepts the premise, which I do not believe that Deadline 2000 necessarily does, that we are in the realm of comparisons between methods of control, because as I understand it there is controversy as to whether foxes, for example, need to be controlled, but taking that premise, and therefore the argument that what one has to do is to compare the suffering, the cruelty involved in one method of control as against another, in making that comparison I think the point still lies that one does not have to prove conclusively scientifically that one method is more or less cruel than another. One is entitled in meeting objective tests, if you like, if I can call it that, to take into account the totality of the way that human beings have to make an assessment: observation, experience and professional judgment and all the rest of it.

MR SWANN: Lord Burns, thank you. If I could just add to those comments and state that in defining one act as cruel it should not actually require that that be justified by trying to look for an alternative, but to accept that is not the reality that faces your Committee. I would make the point that with hunting with dogs in respect of chasing those animals and killing them by means of the dogs as an agency it is never possible to satisfy my definition of humane killing. In looking at alternatives, it is possible to satisfy those definitions of humane killing. As to what percentage are humanely killed, we are now down to the mechanics, skill and variables, which are capable of being influenced, whereas in killing with dogs every single instance involves an act which, in my view, represents an act of cruelty.

THE CHAIRMAN: Are there any other issues about this ECHR question that you think need raising at this stage? Okay. Could we move on and see if there are any points that --

MR FORDHAM: Can I explore with you two topics on the ECHR, and the first is what we have been discussing, namely justification and the basis for the justification. Firstly, can I put to the Alliance, just for your comment, a proposition, and it is this: that in a scientific grey area where the precautionary principle is in play, strong public belief and the belief of the legislators that an activity is cruel and immoral, could suffice for the purposes of the Convention objective; that is to say, general interest or protection of morals. Would you like to comment on that as a proposition?

MR LISSACK: Can I do the amateur bit and then pass over to the professional? The trouble with this area, Lord Burns, it seems to me, with the greatest of respect to the learned questioner, is it depends upon the "it", and it depends upon, in this instance, how grey the grey is and how much informed that greyness is by proper debate and inquiry and research, how strong and how well-informed the view is of the public and how strong and how informed and how driven is the view of the legislators. That is all fantastically unhelpful, rather woolly stuff, I realise, but it is the reality of the position, and if one made it less general and more specific -- which is not the fault of the questioner at all, I realise, Mr Fordham -- by reference to a specific state of affairs within this specific area it would be much easier to answer. In principle, if you had something that was so dark grey it was almost black and you had a well-informed public debate that was supposedly supported by, shall we say, the views of an independent inquiry into the morality, if that were possible, of what had taken place, or the actuality of what had taken place leaving morality to Parliament, then yes, that is a different position to the one that would otherwise pertain if it was light grey with no inquiry and no proper debate, just "I do not like it", and so with those fantastically unhelpful comments, which I think actually do accurately capture the flavour of it, can I pass over to Mr Patchett-Joyce.

MR PATCHETT-JOYCE: Sir, I have very little to add to that, save perhaps linking in the response which was properly made to the comparison with bear baiting and cock fighting. On the assumption that there is a need to control, then it would be odd indeed if in circumstances where what is premised is a scientific grey area one route fell foul of a test for the general interest for the protection of morals, one method of dealing with the problem fell foul of that, and yet another method, which was not proven one way or another, did not fall foul of that.

MR THOMAS: Just to say that Mr Fitzgerald in his opinion, in paragraph 17(iv), says this: "However, the courts are likely to find that provided there is some scientific basis for the conclusion that foxes will be exposed to a significant degree of unnecessary suffering by the choice of this particular method of control, it is not for them, it is not for the courts to conduct an in depth review of rival scientific claims." Leaving aside the question of whether one should substitute objective basis for some scientific basis, what this is saying, I think, is that the point that we have already been making that the legislature first and then the courts in reviewing what the legislature has done has to be satisfied that there are reasonable -- that there is a legitimate aim and that there are reasonable grounds for pursuing the aim in the way that it has, and that is a low threshold that a contracting state has to meet, and that is the point which I take Mr Fitzgerald to be making.

MR PATCHETT-JOYCE: Sir, I wonder if I could just come in there because the passage that has been read does contain the adjective "unnecessary", and whilst I cannot put myself in Mr Fitzgerald's mind, I doubt that that word is there unnecessarily.

MR FORDHAM: Can I then raise a related topic which is this: so far the debate has been on the basis that if there is an interference with a Convention right the first question is whether the state has a legitimate objective and, if so, the second question is whether the prohibition is necessary and therefore satisfies a test of proportionality. Can I put to you a middle question, which is whether or not the prohibition is appropriate or suitable to achieve the objective. So that assume that objective, is not the next question to ask whether this measure will or will not achieve any prevention of unnecessary cruelty? If that is a relevant question, and does not one ask at that stage will this achieve it? Does not one ask whether there is any objective basis for believing that that will be achieved?

MR LISSACK: Yes.

MR THOMAS: In my opening remarks I said that one of the factors which globally the courts will have to look at in this area in relation to whether a Convention right has been breached is whether, assuming the premise on which the legislation is based, which here is the fact that hunting with dogs is cruel and that most people disapprove of that cruelty and therefore wish to see it banned, is there another way of achieving that objective, of meeting that objective, other than the legislation which is proposed?

MR FORDHAM: Mr Thomas, what I am putting to you is that before you get to that question of necessity there is a question of whether this measure will achieve a reduction of cruelty; will achieve the aim of preventing unnecessary suffering, before you get to the question of alternatives and whether this is a necessary way to achieve that aim, will it achieve it at all?

MR THOMAS: In our view the answer to that question is clearly yes, because the legislation will prohibit an act which is believed to be cruel and therefore if the objective is to avoid cruelty then clearly the legislation will meet that objective.

MR FORDHAM: The final point is just to clarify that before we get to justification there is the question of whether the Convention is engaged at all and, as I have understood the papers, the position is that it is accepted that there is an interference with property interests, accepted on behalf of Deadline 2000, so that it is common ground that the Convention is engaged. There is then a debate about whether we have a deprivation or something similar to it, an interference with the substance, and you, Deadline 2000, say, "No, we do not, all we have is control of the use". Whereas in relation to the other articles it is not common ground that the Convention is engaged, and in particular article 8. Now I just want really to ask you whether I have understood correctly that that is the position, and I suspect there is really no need to say much in developing it, but is that broadly the position?

MR PATCHETT-JOYCE: Yes, as I understand it, it is. There is perhaps one small point in relation to Article 1 of Protocol 1 in that there is the argument of interference with property rights by reason of not being allowed to do that which one wants to do on one's own land. There is also a second argument which can be raised by equating hunting rights to, say, fishing rights which in legal terminology is a profit a prendre and that profit a prendre -- I am sorry to use the jargon -- would itself be property which would, again, be removed from the individual contrary to Article 1 of Protocol 1.

MR THOMAS: Yes, you have correctly understood the position, with one rider that I should make, which is that in relation to Article 1 of Protocol 1, which is the only right which we accept is engaged at all, it is only engaged for a small minority of people who presently are engaged in hunting.

MR NARDELL: Just a small point, because it is one that I do not think is touched on in either paper, and that is the question of whether there is some value specifically in the profit a prendre, which in the cases of certain lands hunting rights may amount to. There is no material in from Deadline 2000 on this, but, as I understand it, there is some material which has been placed in the bundle from the Countryside Alliance, and I am not going to take you to it, but I will just give you the reference. It is on page 52 of the bundle, and it is heading 4 of the evidence of Sir Robin Dunn. He just makes the point, and I will just read out very shortly what he says: "There is no evidence that a grant of hunting rights has affected the value of a property when it is sold. Consequently, hunting rights are of no pecuniary value; there is no market in them." In other words, one may have the shell of a right which may run with the land, but even on the evidence put in by the Countryside Alliance it is not a valuable commodity or interest, the interference with which raises any substantial issue.

MR LISSACK: In an endeavour to assist, and perhaps on a lighter note than some of the other exchanges have been, for a mere £30 any member of the Inquiry can purchase the Essential Human Rights Act 1998 book written by Wilberforce Chambers. Chapter 11, I notice, looking at it this morning, funnily enough is headed, "Fox hunting; a human right", and is written by someone called John Ferber QC, who has never had anything to do with the Countryside Alliance. It is a very interesting article which has two virtues: first of all, it is only three and a quarter pages long and, secondly, it is very clear and it is powerful support--

THE CHAIRMAN: That is almost £10 a page!

MR LISSACK: You get lots of other chapters too which will keep you amused for hours, Lord Burns, but this particular chapter, the serious point being this perhaps, it does make very clearly and well the economic right loss under property and anyone may care to look at it, or there again may be not. Mr Fordham, I am sure, reads it daily. Thank you.

THE CHAIRMAN: As far as our timetable is concerned, I think we probably should take a short break and then have the final remarks, but, before we do that, does anyone wish to raise anything under the question of the implementation timetable, or has that all been dealt with in the papers? I have no specific questions about that. Okay. Well, I have one other question which I have given notice about, but maybe can we take this after a cup of tea, which I would like to ask each side what they believe the effect would be on hunting if the exemptions that are currently in the animal welfare legislation -- both the 1996 Act and the Badgers Act -- were withdrawn and how far they think that that would bring about the same ends, as is being suggested by this piece of legislation. Thank you. If we could come back in 10 minutes. (Short break).

THE CHAIRMAN: Thank you all very much for returning so promptly, and if I could put the question, maybe to John first. What would you see as being the impact on hunting of withdrawing the exemptions that are in the present legislation; that is the exemptions both in the Badger, Act and there is the 1996 act -- there may be others. I am not quite sure -- but if one took that approach, how would you see hunting developing?

MR JACKSON: I would like to answer that, Lord Burns; that is a very interesting question, and I will answer it in the context, if I may, of this central question of the imposition of unnecessary suffering on animals. I must say that as an ordinary chap, who has lived in the countryside most of my life, and someone who has a great respect for animals, it has never been clear to me why it has been lawful for unnecessary suffering -- and I will come back to the definition of that -- to be imposed on particular kinds of animal or in any particular way. If one's stance is -- and it is my stance and it is the stance of the Alliance -- that it has long been accepted in this country that the imposition of unnecessary suffering on animals was wrong, what on earth is the intellectual justification for any exceptions? I think it is very important to remember that, since we are not Jains; we do not live in a country in which we all wear no clothes to avoid the risk of squashing insects by accident, that unnecessary suffering as a concept very often has to be looked at in a relative context and, as you pointed out earlier, it is that which distinguishes bear baiting, dog fighting, cock fighting or, indeed, sending little boys up chimneys to sweep them, and the problem we all have in this area is that we are talking about the culling of wild creatures for particular purposes and there are other methods of doing it. I do not know anybody in the Countryside Alliance or in the hunting community who would argue against what I have said. If you look at it the other way round, it is just as wrong to impose unnecessary suffering in that sense by snaring -- an activity which as a countryman sometimes causes me a great deal of worry -- shooting or any other method, and also if these exemptions were not there, it would, to my mind, have the huge advantage of allowing each case that anybody wanted to pursue to be dealt with on the facts of that particular case and on a case by case basis, and I guess it will have become clear to your Committee in the course of your inquiry that this is a hugely complicated area; what goes on varies very much from one part of the country to another, from one species to another, and so on. This leads me to I think my final point: I am extremely worried by the proposition that has been put forward several times and cogently today that hunting is a method of dealing with wild creatures which necessarily imposes unnecessary suffering compared with other methods, and I become extremely worried when I hear the argument produced that there is no need to attempt to prove that in any objective sense. One can rely on the subjective good opinion of people at large. There is ample evidence from our own history as a society that that is about the most dangerous road that one can possibly go down. I love my fellow beings; I have grave doubts about their good sense on matters where emotion tends to become involved and there is a shortage of information. I just finish these remarks with a quote. I have checked on it; it is an accurate quote. In December Jack Straw said: "The test of a democracy is not whether you accord rights to people you agree with; it is whether you accord rights to people with whom you profoundly disagree." So that is my reaction to your question.

MS NEWMAN: My answer to that question is that depends what it is intended to achieve. Of course, removing the exemptions will not ban hunting, and if that is the intention then it will not work. What it will mean is that hunts will be allowed to continue, but, as John Jackson just said, each case will need to be proved by the prosecutor, so the prosecutor will have to prosecute in each and every case, an of course prosecutors can only do that if there is sufficient evidence before them so that they can prove the case beyond all reasonable doubt, and obtaining the evidence may be difficult, and by that I mean simply obtaining a carcass in each case. So what it would allow is hunting to continue, and in certain circumstances it may be possible to prosecute using the test of unnecessary suffering. Of course, each case will turn on its own facts, and it is very unlikely that there would be sufficient precedent set to ever outlaw hunting as a result of this. There was a recent case brought by the RSPCA that went up to the High Court involving terrier work in February this year. The defendants were called Brannigan and Bandiera, and the question was put to the High Court objectively -- I can quote it: "Is a person who deliberately puts a dog into a burrow, den, or other habitation of a wild mammal which has been deliberately sealed off and which may contain a large carnivore which is likely to and does cause an injury thereby guilty of cruelly ill-treating that dog under section 1(1)(a) of the Protection of Animals Act 1911?" The High Court in that case said yes, it does, but of course that is not going to prevent all terrier work, because each case is dependent on its own facts, and in every single case the prosecution would have to deal with the evidence that it found on its own merits, and one prosecution is not going to automatically outlaw all hunting and say it will be an offence contrary to say the Protection of Animals Act, or say the Wild Mammals Protection Act, so it depends on what legislators are trying to do whether it would work or not.

THE CHAIRMAN: But presumably these exemptions were put in for a purpose, so that if the exemption in relation to the Badger Act was not there and stopping-up of badger sets was not allowed under any circumstances this would have quite an impact upon hunting? Otherwise the exemption would not have been asked for in the first place. Similarly, with regard to the 1996 act and, indeed, I think the exemption for hunting is also in the 1911 Act. I assume that they were put there for a purpose.

MS NEWMAN: Absolutely, and the Badgers Act one in particular would mean that badger sets could not be stopped, so foxes would not have anywhere to run to escape, and it may well mean that more foxes get away and are not attacked by hounds, but it will not actually ban hunting, and that is the difference. It may restrain or restrict it in some way and it may make prosecutions in some cases possible, but it will not bring a prohibitive ban.

MR NARDELL: I wonder if I just might come back briefly on this question of the nature of the exemptions, because I am sure I will be forgiven, although possible not, for putting it in this way. It is very important not to allow the tail to wag the dog when we are dealing with exemptions to legislation, because the exceptions have been inserted in this legislation on the basis that that is the only way to accommodate the fact that hunting with dogs is lawful. Now plainly if a prohibition on hunting with dogs, albeit subject to exceptions, were introduced then one would have to go back to the exceptions that are created either to remove them or to modify them and, indeed, as part of that consequential exercise Michael Foster's bill and Ken Livingstone's bill have both suggested changes which might be made, some of which qualify the exceptions for hunting by inserting, for example, the term "lawful", some of which remove exceptions entirely. So plainly inserting exceptions into legislation in the first place and their removal or qualification is at most a consequential exercise, and it seems to me that it is not entirely helpful to come at the problem from the point of view of the inquiry that you have made, because it is an instructive exercise, I have no doubt, but I think one must keep one's eye on the ball in terms of the exceptions in the legislation which are premised on the assumption that hunting is going to be lawful.

THE CHAIRMAN: I can see that. But I am approaching this, obviously, from a relatively naive position, which is that there is some legislation against unnecessary cruelty. There are built into it some exceptions for hunting. That would lead me to believe that this was a way of being able to carry on hunting and not to be subject to the laws that otherwise might have made it difficult for hunting to continue. Otherwise why did people go to the trouble to insert them? Therefore my naive approach would also have said that to remove those exemptions would presumably have had more than a token effect. Because if they would only have a token effect why would they insert it in the first place? I can appreciate that this does not bring about exactly the same results that you are seeking to do by having a total ban, but I suppose I am trying to get at the magnitude of this. How important was it to have the exceptions so that there was protection from the general law against causing unnecessary suffering?

MR JACKSON: If I can just, if it is not clear already, Lord Burns, our stance is that we are strongly opposed to anything which imposes on any animal unnecessary suffering. What makes us very uneasy in this whole debate is the suspicion -- it may be an unworthy suspicion -- that what people are seeking to achieve is not the avoidance of unnecessary suffering, but the banning of a particular type of human activity, and those are two very, very different questions, and that is why we have heard so much debate between the lawyers today, hence my remark earlier, that if there was a situation in which it was absolutely clear that hunting necessarily involved the imposition of unnecessary suffering, then much of this debate would be quite unnecessary. If that is not clear, then I think the question the Inquiry has put becomes particularly relevant. Does it actually serve any useful purpose in those circumstances to have any exemptions, because that actually could have the effect of clogging the normal process of law, which of course we also strongly support.

MR SWANN: Lord Burns, I must respond to that, because the desire from these organisations to see a ban on hunting is in no way related to wishing to prevent people carrying out a certain activity for that activity's own sake. This is entirely based on a desire to prevent what we are convinced is a form of animal suffering, and this is not based on a frivolous and subjective view -- and I must take issue with you, John, on that -- this is based entirely on a review of the scientific evidence, such as it is, and the use of those types of professional judgment which I as a veterinary surgeon would use every day of my working life in situations where I was required to make judgments to assist a court in reaching decisions on when a particular act represented cruelty, and I am totally convinced from the evidence that we have been given, and I am totally convinced from using experience and knowledge in this respect, that these acts are cruel, and this is not a subjective view as such and it is not a frivolous view; it is a firmly held belief, but in no way is that view formed from a desire to stop people carrying out the activity, other than for that specific reason.

MR JACKSON: If I could just respond, Lord Burns, I accept that and I welcome it, and I certainly would not accuse your side of being frivolous. Can I just make one remark, and it is touching on something which I covered in my first letter to the Inquiry. As human beings we have to be very, very careful when we make assumptions about what goes on in animals, and I say this with particular reference to what actually goes on in the course of the pursuit of an animal, and we all have the tendency to be a touch anthropocentric, and I think we have to be very, very careful about that.

MR SWANN: I would hope, Lord Burns, that we have exercised that due care. Thank you.

MR THOMAS: I am not an expert on the 1996 act or the other legislation where the exemptions are, but it seems to me that a simple removal of the exemptions would be wholly unworkable, because what that would mean, of course, is that you would have to prove cruelty in each and every case. So, in other words, you would have a mini, or perhaps not so mini, Burns inquiry on every single issue, because every time a prosecution was brought there would be a pile of scientific and other evidence from both parties, and the whole system would be wholly unworkable, and add very considerably to the burden on the police, as the prosecutor in preparing cases. It is far better to resolve the issue as best one can on the evidence in a legislative way and take the matter forward in that way.

THE CHAIRMAN: But why is the legislation unworkable with respect to the other things that it covers, if that is the case?

MR THOMAS: As I say, I am not an expert on those acts.

THE CHAIRMAN: I think we have probably pushed this one as far as we can. I have to thank everyone very much for their participation in this seminar. I would just like to have any concluding remarks that any of the participants would like to make about today's seminar? And then I would like to make some concluding remarks after that. But John, do you have any further remarks you would like to make in relation to today's events.

MR JACKSON: Not about today's events. I will pick them up in the final remarks I would like to make.

MR LISSACK: No, I think it has all been aired more than fully. I have nothing to add.

MR PATCHETT-JOYCE: I am here on a very limited basis and I, similarly, have nothing to add.

MS NEWMAN: Nothing to actually add, just to clarify really, to make clear that there is nothing particularly ground-breaking about this legislation, but I deal with the prosecutions department dealing with animal welfare. This sort of legislation would fit in quite happily and quite comfortably with the animal welfare legislation that already exists.

MR NARDELL: My remarks are in a very similar vein. The Parliamentary draftsman, whether in the public or private sector, often needs a hard hat to guard as much against bouquets as against brick bats. I have had the great honour of working with the individual who is now first Parliamentary counsel on the preparation of the Human Rights Act, which for its drafting won praise from most unexpected quarters. What people meant when they said it was very well drafted is that they agreed with the policy; they thought human rights were a nice idea. One has to be on one's guard against that sort of compliment with equal vigour as on one's guard against the more usual sort of comment directed at the draftsman that this is a terribly drafted awful piece of legislation when what people really mean is that they do not like the policy, and it seems that there are important lessons there in terms of evaluating many of the arguments that have been heard today.

MR SWANN: I think, Lord Burns, I made my concluding remarks in my response to Mr Jackson, thank you.

THE CHAIRMAN: This is the final of our public seminar sessions and I would like to take this opportunity to say a big thanks to everybody who has participated in them. In particular, I would like to thank both sides of the debate. It has been carried on with good humour, patience and I think a willingness to listen. When we designed this process we did not quite know what to expect. At the time it seemed like quite a bold move to get the research done and then to have a discussion of it. We were not quite sure on what basis it could be handled, given the sensitivity of the issue. The fact, from our point of view, that they have been such a success does owe a great deal to the participants and the way that the seminars have been conducted. I am enormously grateful for that. I would also like to say thank you to the Hunting Committee staff who have organised these seminars. I think with the exception of today when the climate control broke down rather badly, that has gone very well. We have had to move venues on rather more occasions than we would have liked but, nevertheless, it has always been done in a way which meant that everybody did manage to turn up at the right place on the right day. Sometimes we should be grateful for these limited achievements. Finally, I would very much like to thank the people taking the transcript, because they have been with us through all of the sessions. It has been an enormously arduous task. We get copies of the transcripts very quickly afterwards and, as a result, we have been able to get them round and available for people. We are managing to get quite a lot of them on the Internet, and eventually we will get all of them on, so I am very grateful for that. We now have the difficult job of pulling this all together and reaching some conclusions. I do not think I can say a great deal about that today, other than to say that we still have a great deal to do, but we are much better informed. We all now know a great deal more about this subject than we did, not only when we started, but before the point at which we began to have these seminars, which have added greatly to our understanding of the issues. So thank you very much.

MR JACKSON: If I could just make some remarks, Lord Burns. Firstly, from our side I would like to echo all your thanks, perhaps particularly to the Inquiry staff who have had to help you conduct an inquiry into a very complex subject with an unnecessarily cruel time-frame. I would also like to say that from our side we have appreciated the way in which arguments have been presented by the folk that we do not agree with and who do not agree with us, and one of the advantages in an inquiry of this sort is that it does get differences out on the table in a form that people can understand. If I can just make as it were the final submission to the Inquiry. As someone who is trained both as a scientist and a lawyer and used the law all my business life, I always say to people, "Avoid the law like a plague if you can". In a very complex society that we live in there are often questions which are far better resolved in a way which gives the public true confidence if people can put their heads together. For many years I helped compile the code which is operated by the Advertising Standards Authority. Over the years I have had a lot to do with the takeover panel. At one time I had some contract with the newspaper proprietors, and I really do believe that this is a situation which ought to be looked at from that point of view. We are all the prisoners of history, unfortunately, and in this particular case it is a bad history. There are certain members of the hunting community -- one in particular -- that I could cheerfully throttle; one I intend to take out and teach him what I call the "back door two step" because they sometimes behave in a way which is insensitive and, in my judgment, not likely to encourage in the minds of ordinary people much confidence. But, on the other hand, I am extremely unhappy about the activities of Members of Parliament who have made it clear that they actually do not give a damn what the findings of this Inquiry are going to be; they have made up their minds in advance, and I am not saying this in order to score points, and Mr Swann knows I am worried about it. The Countryside Alliance is at the moment the recipient of furious complaint from its members, whose applications to join the RSPCA have been held up because the RSPCA is presently applying to the High Court for a ruling as to the circumstances under which it can refuse people membership, and if one is going to get a dialogue going -- and I really would like to see that dialogue -- then I think one needs to have a situation in which all bets are off in advance as it were in order to give people a fair chance of talking together. We all have a duty to the public, and I think we do need to see if we cannot find a way of these activities continuing in a manner in which the public have confidence.

MR SWANN: Thank you, Lord Burns. As you know, I think you have had an unenviable job in trying to take evidence from two parties who, as we accept, fundamentally disagree, and I think you have been successful in determining those areas around which the disagreement revolves. I was trying to think of a suitable word that would give a blanket expression of how this Inquiry has been conducted, and it is an old-fashioned word, but I believe it is with dignity, and I think it is to your considerable credit that this Inquiry has been conducted in that way, and as a personal point thank you very much. I do not believe there are any issues that we wish to bring to your attention that we have not been able to, and so in this respect I think we have made our case. I wanted to say a personal thank you to Brian Caffarey, Mark, Eleanor and staff, who have been unfailingly helpful and have had a degree of patience which I very much doubt I could have shown in the same circumstances, and I would also like to pay thanks to Simon Hart from the Countryside Alliance, who has been unfailingly helpful in exchange of documents and making agreements where it has been necessary to do business in a completely non-partisan way. I have no more to say. I would like to respond to Mr Jackson's last comment, but I am employed in this capacity by the RSPCA purely for this issue, and much as I would love to debate the internal politics of the RSPCA I neither have the mandate nor the liberty to do so, but we perhaps could pursue that at another time. Lord Burns, thank you.

THE CHAIRMAN: Thank you all very much. We adjourn.

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