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Arrangement of Clauses (Contents)
These notes refer to the Hunting Bill
1. These explanatory notes relate to the Hunting Bill as introduced in the House of Commons on 3rd December. They have been prepared by the Department for Environment, Food and Rural Affairs in order to assist the reader of the Bill and to help inform the debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The Bill prohibits the hunting with dogs of wild mammals except when that hunting is registered or exempt. Deer hunting with dogs and hare coursing are prohibited.
4. Registration will only be granted for hunting with dogs which satisfies tests of utility and least suffering. All registered hunting is subject to conditions concerning the conduct of the hunting, the welfare of the wild mammals to be hunted and inspection.
5. The Bill establishes a registrar to determine applications concerning registration and an independent Hunting Tribunal to hear appeals from the registrar's decisions. Prescribed animal welfare bodies may provide evidence to the registrar on all applications for registration and may apply to the registrar for hunters to be de-registered.
6. This Bill extends only to England and Wales.
TERRITORIAL APPLICATION: WALES
7. All provisions of the Bill apply to both England and Wales.
[Bill 10-EN] 53/2
COMMENTARY ON CLAUSES
PART 1: OFFENCES
Clause 1: Hunting wild mammals with dogs
8. Clause 1 makes it an offence for a person to hunt a wild mammal with a dog unless the hunting is registered or exempt.
Clause 2: Registered hunting
9. Clause 2 sets out what constitutes registered hunting for the purposes of the offence in clause 1:
10. The effect of this provision is that (unless the hunting is exempt from the requirement for registration under clause 3) it is an offence under clause 1 to hunt a wild mammal with a dog either without a relevant registration or in breach of the conditions of a registration concerning the species which may be hunted or the area in which hunting may take place.
11. Breaches of other conditions of a registration (such as the automatic conditions of registration imposed by clause 27 or 28) will not give rise to an offence under clause 1 but may result in de-registration under clause 34.
Clause 3: Exempt hunting
12. Clause 3 provides that the classes of hunting which are exempt from the requirement for registration are specified in Schedule 1. Subsection (2) confers a power on the Secretary of State to vary a class of exempt hunting by order (which under clause 48(2) may not be made unless a draft has been approved by a resolution of each House of Parliament).
Clause 4: Hunting: assistance
13. Clause 4 makes it an offence for a person knowingly to permit land or a dog which belongs to him to be used in the commission of an offence under clause 1.
Clause 6: Deer
14. Clause 6 provides that deer hunting cannot be registered. This prohibits the hunting of deer of any species with dogs except in accordance with an exemption from the requirement for registration under clause 3. The relevant exemptions in Schedule 1 are stalking and flushing out (paragraph 1), recapture of a wild mammal (paragraph 6) and rescue of a wild mammal (paragraph 7).
Clause 7: Hare coursing
15. Clause 7 prohibits hare coursing. Subsection (1) makes it an offence for a person to participate in, attend or knowingly facilitate a hare coursing event or to permit land which belongs to him to be used for a hare coursing event. Under subsection (2) an offence is committed when a dog participates in a hare coursing event by any person who enters the dog for the event, who permits the dog to be entered for the event or who controls or handles the dog in the course of or for the purposes of the event.
PART 2: REGISTRATION
Clause 8: Tests for registration: utility and least suffering
16. Clause 8 sets out the two tests of utility and least suffering which must be satisfied before registration can be granted for any hunting with dogs.
17. To satisfy the utility test under subsection (1), the applicant for registration must show that the proposed hunting with dogs is likely to make a significant contribution to the prevention or reduction of serious damage which the wild mammals to be hunted would otherwise cause to livestock; game birds; food for livestock; crops; growing timber; fisheries; other property; or the biological diversity of an area.
18. To satisfy the least suffering test under subsection (2), the applicant for registration must show that a contribution to the prevention or reduction of serious damage equivalent to that mentioned for the utility test in subsection (1) could not reasonably be expected to be made (whether by the applicant or by another person) in a manner likely to cause significantly less pain, suffering or distress to the wild mammal being hunted.
19. For the purposes of the utility test, in subsection (1)(b) game birds are defined by reference to section 27 of the Wildlife and Countryside Act 1981, which provides that ""game bird" means any pheasant, partridge, grouse (or moor game), black (or heath) game or ptarmigan". Equally, in subsection (1)(h) the biological diversity of an area is defined by reference to the United Nations Environmental Programme Convention on Biological Diversity of 1992, Article 2 of which provides that ""biological diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems".
Clause 9: The registrar
20. Clause 9 establishes a registrar, to be appointed by the Secretary of State.
Clause 10: The Hunting Tribunal
21. Clause 10 establishes a Hunting Tribunal under the supervision of the Lord Chancellor. This provision should be read in conjunction with Schedule 2, which sets out detailed arrangements for the composition and procedures of the Tribunal. Subsection (3) confers a power on the Lord Chancellor to make rules concerning appeals, applications and proceedings before the Tribunal (which rules shall under clause 48(4) be subject to annulment in pursuance of a resolution of either House of Parliament).
Clause 11: Prescribed animal welfare bodies
22. Clause 11 provides for prescribed animal welfare bodies to be designated by the Secretary of State by regulations (which under clause 48(4) shall be subject to annulment in pursuance of a resolution of either House of Parliament), and for the Secretary of State to make payments to those bodies for the purpose of assisting them in carrying out their functions under the Bill.
23. Other provisions in the Bill provide that the prescribed animal welfare bodies may make representations in respect of applications for registration (clause 18(2)); may appeal to the Tribunal against the granting of registrations (clause 19(2)); and may apply to the registrar for hunters to be de-registered (clause 34(1)). It is also an automatic condition of all registrations that an inspector appointed by a prescribed animal welfare body must be permitted on request to inspect the hunting (clause 27(3) or 28(3)).
Application for registration
Clause 12: Advisory bodies
24. Clause 12 provides that English Nature (in England) or the Countryside Council for Wales (in Wales) may provide advice on request to the registrar or the Tribunal.
Clause 13: Application by individual
25. Clause 13 sets out the conditions under which applications may be made for individual registration.
Clause 14: Application on behalf of group
26. Clause 14 sets out the conditions under which applications may be made for group registration. Under this provision one or more persons may apply to be registered in respect of hunting to be carried out jointly by one or more of them and other non-registered persons under their supervision (subsection (1)). An application for group registration must include conditions specifying, among other things, the arrangements for the supervision of non-registered persons to ensure compliance with the conditions of registration (subsection (6)).
27. Subsection (7) allows applicants for a group registration to apply to be registered to hunt in the absence of non-registered persons, and subsection (8) provides that such registration will be regarded as individual registration for the purposes of clause 2(1).
28. Whilst applications for group registration may be made by persons who are members of any type of formal or informal association, in respect of organised hunts it is expected that the applicants for registration would normally be the officials of the hunt.
Clause 16: Renewal of application
29. Clause 16 bars the making by the persons concerned of renewed applications of the same type in respect of hunting of the same species in the same area for six months from the date on which a refusal of an application or a removal from a group registration is finally determined or on which a registration is cancelled. However, under subsection (6)(b) the registrar is given a discretion to permit such renewed applications within the six month period by reason of a material change of circumstances.
Clause 17: Determination by registrar
30. Clause 17 sets out how the registrar will determine an application for registration. If the registrar is satisfied, on the basis of the written representations of the applicant and the prescribed welfare bodies, that the proposed hunting would satisfy the utility and least suffering tests set out in clause 8 he shall grant the application unless he thinks that any of the applicants is not a fit and proper person to be registered (subsection (3)). Under subsection (5) when granting registration the registrar may, with the consent of the applicant or applicants, add to or vary the conditions set out in the application.
Clause 18: Appeal to Tribunal
31. Clause 18 establishes rights of appeal to the Tribunal for unsuccessful applicants and the prescribed animal welfare bodies from decisions of the registrar on applications for individual or group registration.
Clause 19: Determination by Tribunal
32. Clause 19 sets out how the Tribunal will determine appeals from decisions of the registrar on applications for registration. In reaching its determination the Tribunal must give the applicant or applicants and the prescribed animal welfare bodies an opportunity to make representations (subsection (2)). Under subsection (4) when granting registration the Tribunal may, with the consent of the applicant or applicants, add to or vary the conditions set out in the application.
Clause 20: Appeal from Tribunal
33. Clause 20 provides that a person who is party to proceedings before the Tribunal under clause 18 may (with the permission of the Tribunal or, if the Tribunal refuses permission, the High Court) appeal on a point of law to the High Court.
Clause 22: Content of the register
34. Clause 22 sets out the information which is to be recorded on the register, which includes the species of wild mammal which may be hunted under the registration and the area in which hunting may take place.
Clause 23: Inspection of the register
35. Clause 23 establishes public access to the register. Subsection (1) provides that the registrar shall make the register available for inspection by the public and shall provide a copy of an entry on request, subject to the provision in subsection (2) that the Secretary of State may restrict access to information of a specified kind by regulations (which under clause 48(4) shall be subject to annulment in pursuance of a resolution of either House of Parliament).
Clause 24: Standard duration of registration
36. Clause 24 provides that registration is effective for three years or for any shorter period which may be requested in the application for registration.
Clause 25: Renewal of registration
37. Clause 25 allows for the renewal of registrations. Subsection (1) makes provision for a registration to be renewed for up to three years, while subsection (3) provides that if an application for renewal is made more than six months before the registration would otherwise expire that registration shall continue to have effect until the application for renewal is finally determined.
Conditions of registration
Clause 27: Automatic condition of individual registration
38. By clause 27(2) any hunting under an individual registration is subject to automatic conditions which require that reasonable steps must be taken to ensure that:
39. Other automatic conditions require that an inspector from a prescribed animal welfare body must be permitted on request to accompany those hunting to inspect the hunting (subsection (3)) and that insurance for loss or damage caused to people other than the registered individual must be in place (subsection (4)).
40. Subsection (5) permits up to two other persons (whether registered or not) to hunt with an individual registered under an individual registration. There is no requirement for those participating in hunting under this provision to keep records relating to that hunting.
Clause 28: Automatic condition of group registration
41. By clause 28 any hunting under a group registration is subject to automatic conditions equivalent to those applicable to hunting under an individual registration by reason of clause 27(2) to (4).
42. In addition, further automatic conditions require that records are kept and retained of the identity of each individual who participates in hunting under a group registration (subsection (5)), and that reasonable steps are taken to exclude from participation in hunting any person whom the registered individual knows or suspects has had his registration cancelled or removed from a group registration within the previous three years, is subject to a disqualification order under clause 43 or has been convicted of a specified offence (subsection (6)).
Clause 29: Amendment of automatic conditions
43. Clause 29 empowers the Secretary of State to add, remove or amend an automatic condition of registration in clause 27 or 28 by order (which under clause 48(2) may not be made unless a draft has been approved by a resolution of each House of Parliament).
Clause 30: Variation of non-automatic condition
44. Clause 30 provides for an individual who is the subject of an individual registration or a group of individuals who are the subject of a group registration to apply to the registrar for variation of the conditions of registration (but not of the automatic conditions imposed by clauses 27 and 28).
Clause 31: Appeal to Tribunal
45. Clause 31 provides for rights of appeal to the Tribunal from a decision of the registrar on an application for a variation of the conditions of registration under clause 30. Any person who is party to proceedings under this section may (with the permission of the Tribunal or, if the Tribunal refuses permission, the High Court) appeal on a point of law to the High Court.
Variation and cancellation of registration
Clause 32: Group registration: addition or replacement
46. Under clause 32 a person may apply to be added to a group registration, either as an additional registered individual or in substitution for another individual registered.
Clause 33: De-registration: conviction of offence
47. Under clause 33, the registrar may cancel an individual's registration or remove an individual from a group registration if that person is convicted of an offence under this Bill, the Protection of Animals Act 1911 or the Wild Mammals (Protection) Act 1996.
Clause 34: De-registration: general
48. Subsection (1) provides that a prescribed animal welfare body may apply to the registrar for a registration to be cancelled or for an individual to be removed from a group registration where that body considers that a condition of registration has been breached or that the tests of utility and least suffering test are no longer satisfied by the hunting to which the registration relates.
49. Under subsection (2), the occupier of land or, in the case of unoccupied land, a person to whom the land belongs, can apply to the registrar for the cancellation of a registration or for a person to be removed from a group registration because trespass on that land has occurred during the course of hunting under the registration.
Clause 35: Appeal to Tribunal
50. Clause 35 provides for rights of appeal to the Tribunal from decisions of the registrar on applications for addition to or substitution in a group registration under clause 32 or for the cancellation of an individual registration or removal an individual from a group registration under clause 33. By subsection (6) any person who is party to proceedings under this clause may (with the permission of the Tribunal or, if the Tribunal refuses permission, the High Court) appeal on a point of law to the High Court.
Clause 38: Group registration: failure to keep records
51. Clause 38 concerns the keeping of records for group registration. Under subsection (1), each registered individual in a group registration commits an offence if he fails to make a record of each time he hunts under that registration and of the identity of each other person participating in that hunting, or to retain the records for the duration of the registration. Under subsection (2), it is a defence for a person charged with an offence under this clause to show that he reasonably believed that another registered individual in the group had made or retained the necessary records.
PART 3: ENFORCEMENT
Clause 39: Penalty
52. A person found guilty of an offence under the Bill is liable on conviction in a magistrates' court to a fine not exceeding level 5 on the standard scale (currently £5,000). When a person is convicted of an offence this must be notified to the registrar, as must any disqualification order made under clause 43.
Clause 42: Forfeiture
53. Where a person has been convicted of an offence under Part 1 of the Bill, clause 42 gives the court power to make an order for the forfeiture of any relevant vehicle, dog or hunting article. Under subsection (6) a person commits an offence if he fails to comply with a forfeiture order, or fails to co-operate with a step taken to give effect to a forfeiture order.
Clause 43: Disqualification for registration
54. Where a person has been convicted of an offence under Part 1 of the Bill, clause 43 gives the court power to make a disqualification order preventing a person from being registered or hunting in reliance of clause 2(2) or (3). The disqualification order must state the length of the disqualification, which could be for the rest of the person's life (subsection (2)). A person who is subject to a disqualification order can apply to the magistrates' court for the order to be terminated one year after the order was made and, if unsuccessful, at yearly intervals after that (subsection (5)).
PART 4: GENERAL
Clause 45: Interpretation
55. Clause 45 defines a number of expressions which appear in the Bill. Subsection (5) provides that for the purposes of this Bill an application is to be treated as finally determined when the registrar has determined the application and an appeal to the Tribunal has been determined or can no longer be brought.
Clause 48: Subordinate legislation
56. Clause 48 concerns the making of subordinate legislation under the Bill. Subsection (2) provides that an order made by the Secretary of State under the Bill cannot be made unless a draft of the order has been laid before and approved by resolution of each House of Parliament, while subsection (3) provides that regulations and rules made under the Bill are subject to annulment following a resolution of either House of Parliament.
Clause 50: Commencement
57. Subsection (1) provides that the provisions concerning registration in Part 2 and clauses 6, 39 and 44 (in so far as they relate to an offence under Part 2) shall come into force one month after the Bill receives Royal Assent. This is to permit applications for registration to be made (so as to benefit from the transitional arrangements set out in clause 51) before subsection (2) brings Parts 1 and 3 (so far as not already in force) and clause 47 into force three months after the Bill receives Royal Assent.
Clause 51: Transitional arrangements
58. Clause 51 sets out the special transitional arrangements that apply to applications for registration which are made during the period of three months from the date on which the Bill receives Royal Assent. Subsection (2) provides that during a transitional period the application shall be treated as if it were granted and the consequent registration effected. That transitional period begins when the application is made and ends when the application is finally determined (subsection (3)).
59. It will thus be possible for persons who apply for registration between the coming into force of Part 2 and clauses 6, 39 and 44 one month after the Bill receives Royal Assent and the coming to force of the other provisions of the Bill two months later to continue to hunt (subject to the standard conditions of registration applicable under clause 27 or 28 and any conditions specified in their application) pending determination of their application by the Tribunal.
Schedule 1: Exempt hunting
60. Schedule 1 sets out the classes of hunting with dogs which are exempt under clause 3 from the requirement for registration when carried out in accordance with specified conditions. These are stalking and flushing out (paragraph 1), ratting (paragraph 2), rabbiting (paragraph 3), retrieval of hares which have been shot (paragraph 4), falconry (paragraph 5), recapture of a wild mammal (paragraph 6) and rescue of a wild mammal (paragraph 7).
Schedule 2: The Hunting Tribunal
61. Schedule 2 makes provision in respect of the composition and procedures of the Hunting Tribunal. Paragraphs 1 and 4 provide that the Lord Chancellor shall appoint a President of the Tribunal and a panel of chairmen, and prescribes the legal qualifications required for these posts. Under paragraph 3 a member of the panel of chairmen may be appointed by the Lord Chancellor to act as deputy President. Paragraph 5 provides that the Lord Chancellor shall appoint a panel of members of the Tribunal: a member must either be a veterinary surgeon or have appropriate experience relating to the welfare of animals or the management of land.
62. Paragraph 14 amends the Tribunals and Inquiries Act 1992 so as to place the Tribunal under the general supervision of the Council on Tribunals.
Schedule 3: Consequential amendments
63. Paragraph 1 amends section 35 of the Game Act 1831. Section 35 currently provides that various provisions of that Act which relate to penalties on trespassers and persons found on any land shall not apply to a person hunting or coursing on any land with hounds or greyhounds in pursuit of deer, hares or foxes. The amendment removes this exception.
64. Paragraph 2 amends section 5 of the Game Licences Act 1860. Section 5 currently provides for a number of exceptions from the provisions of that Act and the duties to be paid for game licences. These include exceptions concerning the hunting of deer and hares by dogs and hare coursing, which the amendment removes.
65. Paragraph 3 amends section 1(3)(b) of the Protection of Animals Act 1911. Section 1(1) of that Act creates an offence of treating an animal cruelly or causing an animal unnecessary suffering, but section 1(3)(b) provides for an exception for the hunting or coursing of a captive animal. The amendment provides that this exception shall not apply in respect of participation in a hare coursing event or the coursing or hunting of a wild mammal with a dog.
66. Paragraph 4 amends section 8 of the Protection of Badgers Act 1992. Section 3 of that Act currently makes it an offence to interfere with badger setts. Section 8(4) to (9) provides an exception to the offence by allowing for the obstruction of a badger sett entrance for the purpose of hunting foxes with hounds provided certain conditions are met. The amendment removes this exception.
67. Paragraph 5 amends section 2(b) of the Wild Mammals (Protection) Act 1996. Section 1 of that Act makes it an offence to do certain acts (such as mutilating, kicking and beating) to a wild mammal with intent to inflict unnecessary suffering. Section 2(a), (b) and (d) provides exceptions from this offence in relation to certain acts concerning lawful hunting and coursing. The amendment provides that for the purpose of these exceptions the hunting of a wild mammal with a dog shall be treated as lawful only if it is registered or exempt hunting within the meaning of the Bill.
68. This amendment means that the only acts during registered or exempt hunting excepted from the offence in section 1 of the Wild Mammals (Protection) Act 1996 are the attempted mercy killing or the killing in a reasonably swift and humane manner of a wild mammal injured or taken in the hunting and acts done by dogs. No other acts involved in hunting with dogs or hare coursing will be excepted from the offence.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
69. The Bill's main provisions establish a process for deciding the future of hunting rather than deciding it directly, and it is not possible to predict the impact on business and employment. In terms of national aggregates, hunting as an economic activity is insignificant. The Bill's prohibition on the registration of deer hunting may have implications for the employment of around 25 full and part time persons.
FINANCIAL AND PUBLIC SERVICE MANPOWER EFFECTS OF THE BILL
70. The administration of the Bill, including the administrative costs of the registrar and Tribunal, will give rise to public expenditure. Costs will be met from the existing DEFRA budget (SR2002). A proportion of the expenditure would be recoverable from fees for applications under clauses 13(3)(d), 14(3)(d), 30(3)(d), 32(3)(d) and 34(3)(d). DEFRA will reimburse the Lord Chancellor's Department for the operation of the Tribunal.
71. Clause 9(1) provides for the Secretary of State to appoint a registrar. Clause 9(5) provides that the Secretary of State may pay salaries, allowances and expenses to the registrar.
72. Schedule 2 provides for the Lord Chancellor to appoint a President, chairmen and members of the Tribunal (paragraphs 1, 4 and 5) and to make payments in respect of the Tribunal (paragraph 15).
73. The size of the registrar's office and the number of Tribunal panels required will depend on the number of applications for registration and the number of appeals which may need to be heard.
EUROPEAN CONVENTION ON HUMAN RIGHTS
74. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament before Second Reading to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of the Act). The Secretary of State for the Department for Environment, Food and Rural Affairs has made the following statement:
75. The Bill provides in clause 50 that the provisions of Part 2 and clauses 6, 39 and 44 (in so far as they relate to an offence under Part 2) shall come into force one month after the Bill is passed, and that the other provisions of the Bill shall come into force two months later.
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