Animals Act 1971 (Amendment) Bill

I certainly do not blame the hon. Gentleman for the Bill in 1971. I blame his party, and he has to take collective responsibility for the decisions made by his party. I am happy to take responsibility for the original Bill of 1969, which would have dealt with the issue far more simply. If the Conservatives had kept the original wording, which was recommended by the Law Commission, we would not be in the difficulties that we are now. The law would have been a lot clearer. It would not have been what I would want to see—although it might have been what the hon. Gentleman wants to see—but, unfortunately, we do not have that before us today. In 1971, during the Second Reading Committee on the Animals Bill, which was introduced in the Lords, the Attorney-General said:"““This has always been a troublesome and difficult branch of the law...it is a very ancient part of the law, because the law with regard to animals tended to reflect an agricultural society, and the society on which much of the early law was based was one in which man was much dependent upon the animals and came more into contact with animals.””—[Official Report, 27 January 1971; Vol. 810, c. 736.]" My hon. Friend the Member for Ealing, North gives me a funny look, but that point is at the heart of our debate. The debate has focused on the rural side of the equation and, apart from the interventions of various of my hon. Friends, has overlooked the urban side, and in particular the problems caused by dogs. The Attorney-General went on to deal with horses that are frightened and capable of kicking out. His view was"““that the keeper shall be liable only for a mischievous propensity of which the owner must know.””—[Official Report, 27 January 1971; Vol. 810, c. 739.]" That is the old scienter principle, for which the hon. Member for Preseli Pembrokeshire contends. If that is what was intended, why did the hon. Gentleman's party, which introduced the Bill, not say so rather than create the mess that he believes exists and wants to tidy up? The Attorney-General went on to deal with clause 5, which concerned the defences as they then were. That gave rise to where we are with the 1971 Act today. It is important to look at the 1971 Act before we start to consider the hon. Gentleman's amendments to it, in order to see exactly what we are dealing with. The Act provides for strict liability for damages done by animals under section 1. It deals with the circumstances in which that will arise, and we are particularly concerned with section 2. Section 2 is divided into two halves. The first deals with animals that belong to a dangerous species, and that is where liability attaches. When damage is caused by an animal that does not belong to a dangerous species—we have to decide what a dangerous species is; we know that an elephant is, and so is a camel, but there are problems in relation to other animals—three criteria have to be satisfied to establish strict liability. The first is:"““the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe””." That provision has two different limbs. I tend to agree with the hon. Member for Preseli Pembrokeshire on this little point of amendment. We could do with some clarification here. That would not do any harm, and to that extent I am with him. However, when he gets on to section 2(2)(b), I start to have difficulties. That paragraph states:"““the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances””." That was the rationale of the Mirvahedy case, which came to the conclusion that when an animal was spooked it would be within those characteristics at that time. We also have a redefinition of scienter in section 2(2)(c), which reads:"““those characteristics were known to that keeper or were at any time known to a person””." The hon. Gentleman's amendments do not make it clear in his definition whether he will keep the constructive knowledge provided for in the 1971 Act or whether he will take that away. Perhaps when he sums up, he will tell us whether he plans to keep the constructive knowledge test. That is quite an important part of section 2.