Animals Act 1971 (Amendment) Bill

The hon. Gentleman makes a fair point, and he may well be right. Obviously it is far better for cases to be settled than fought, but serious cases will tend at least to be litigated, even if no judgment follows. The figures that I gave earlier showing a decline in the number of High Court cases across the board are symptomatic. If what he suggests were correct, the insurance industry would have produced very detailed briefings for today's debate, which would presumably have contained a lengthy list of all the cases that had been settled that it considered to be unfair on the basis of the Mirvahedy principle. The dog that did not bark—an apt way of putting it, in the context of the Animals Act—is the insurance industry, which has produced no evidence of actual post-Mirvahedy cases that it considers to be unfair, as opposed to general speculation that there might be a few of them of which we have not heard. The insurance industry is very good at carrying out research, and when debates such as this have taken place in the past it has always brought chapter and verse to the table. It has not done so today, and I think it extremely unlikely that we will see any evidence of those cases. Paragraph 17 of the explanatory notes, headed ““European convention on human rights””, states:"““The Bill amends existing legislation to clarify the circumstances in which strict liability can apply to the owners of animals that cause harm or damage. Nothing in the Bill directly affects the rights or obligations of any person in such a way as to engage their Convention rights.””" The Joint Committee on Human Rights would have an awful lot to say about that bald assertion. In our annual report this year, we produced a coruscating paragraph in which we pointed out that far too many Departments make such bald assertions of compliance without analysing the facts. An assertion does not constitute justification for a statement of compliance with the Human Rights Act 1998, and I cannot take this assertion as a proper certificate for those purposes. We need only refer to the Human Rights Act to see that human rights principles may well be engaged. For a start, there is the right to life—the most important of human rights—which is enshrined in article 2 of the convention. It is fundamental in this context. The state has a positive duty to protect the right to life, and the weakening of civil liability will work against that positive duty. There is also the right to protection of private property, which may also be engaged. The Bill deals with not just personal injury but property damage, and that principle too could be engaged. The same applies to the right to protection of private and family life, which is laid down in article 8. So I am certainly not convinced that the Bill is compliant with the Human Rights Act and the convention. The Bill's promoter says that the intention is to return to the common law of negligence. I do not think that the Bill does that. It offers one sensible amendment in relation to damage by substituting for section 2(2)(b) of the 1971 Act provision that"““the damage was due to an unusual or conditional characteristic of the animal””." That is a helpful clarification. However, its changes to paragraph (c) are unhelpful, and the remainder of the Bill does not achieve the objectives sought. The explanatory notes state:"““The intention is to allow the courts to distinguish between a continuing, generalised risk that the keeper knows may occur at some time (e.g. a horse may shy at a plastic bag if one blows in the wind near it) but does not know when it may occur, and a heightened, specific risk over a specific period of time that the keeper knows will increase the possibility of the animal displaying dangerous behaviour during that period (e.g. a cow with calves, or a horse in a field next to a shoot).””" That is not a return to the original common law, as we have learned from references to previous cases. Let us look at the definition of unusual characteristics in the commentary in the explanatory notes:"““Unusual characteristics are defined as those that are not shared by the species generally, while conditional characteristics are defined as those that are shared generally by the species, but only in particular circumstances””." The hon. Gentleman has rightly drawn attention to the two different limbs of his new definition: the unusual characteristics and the conditional characteristics. However, I do not think that that would add a great deal in the scheme of things. We are dealing with a small number of cases, and I think we should leave well alone. There are other complications. I an unsure whether the hon. Gentleman intends to include the same definition of knowledge as that in section 2. I am sure he will want to reply to the debate, and perhaps when he does so he will clarify the position in relation to constructive knowledge and say whether the same test would continue to apply. There is also an issue in relation to the limitation period. The normal limitation period for personal injury claims is three years, but a 2002 case—Clarke v. Barber—changed the principles in relation to limitation, and that is important in terms of liability under the Animals Act. In that case, the top of the claimant's index finger was bitten off by a dog, but the claim was brought three years and nine months after the incident. The limitation period was thought to be three years, under section 11 of the Limitation Act 1980, so, unfortunately, the case fell outside its provisions. However, the court came to the conclusion that a special six-year limitation period would apply because of the particular requirements of strict liability under the 1971 Act. The court concluded:"““The cause of action under the 1971 Act was one of strict liability””." That is the section 2(2) point. It went on to say that"““therefore once a claimant had established the three requirements under s.2(2) of the 1971 Act relating to non dangerous species””" —in this case a dog, but it could have been a horse—"““then liability followed. The 1971 Act did not impose a duty of restraint or duty to take reasonable care and therefore could not be interpreted as a claim for breach of duty. Therefore a six year limitation period applied.””" If the hon. Gentleman is going to start messing around with section 2(2), perhaps he will tell us what the implications would be for the limitation period under that section. What will be the implications for the six-year limitation period relating to strict liability if he gets his way and removes that strict liability under section 2(2)(b)?