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Joint Committee On Human Rights Third Special Report

Annex 2



  10.5  A fundamental argument put to us by the Countryside Alliance was that a ban on hunting would be incompatible with the ECHR. This matter was considered at some length in the papers prepared by the Countryside Alliance and Deadline 2000 and was also discussed fully at the seminar itself. The papers helpfully included Opinions by distinguished Counsel on both sides. Counsel's Opinion, relied on by Deadline 2000 specifically addressed a draft Bill which had been prepared, whilst Counsel for the Countryside Alliance had considered the matter in principle

  10.6  Counsel for the Countryside Alliance (Edward Fitzgerald QC) concluded that, in his Opinion, there was "a serious argument that the proposed ban on hunting with dogs will violate [both] Article 1 of Protocol I and Article 8". Counsel for IFAW (David Pannick QC, Richard Drabble QC and Rabinder Singh), relied on by Deadline 2000, concluded that, in their Opinion, "a ban on hunting wild mammals with dogs would be compatible with the Convention".

  10.7  The Convention rights will become part of national law from 2 October 2000, when the key provisions of the Human Rights Act 1998 come into force. Under the Act the higher courts will be able to make a declaration of incompatibility with the Convention in relation to an Act passed by Parliament.

  10.8  It was clear to the Committee from the submissions and Opinions on both sides that the main argument centred on two Articles in the Convention; Article 8, which deals with respect for private life, and Article 1 of Protocol I, which deals with the right to peaceful enjoyment of property. (Although there has also been some discussion in this context of Articles 5 (right to liberty and security), 6 (right to a fair trial), 11 (freedom of assembly and association) and 14 (prohibition of discrimination), it does not appear that a strong case could be mounted for arguing that a Bill to ban hunting would infringe any of these articles.)

Article 8

  10.9  Article 8 provides as follows:

    "1. Everyone has the right to respect for his private and family life, his home and correspondence.

    2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

  10.10  There are two main issues: whether hunting with dogs can be regarded as coming within the concept of "private life" and, if it does, whether interference is justified on the grounds set out in Article 8(2). On the first issue, both sides agree that "private life" may encompass certain aspects of social interaction with others. But they disagree on whether a ban on hunting with dogs would constitute an interference with this right. The Countryside Alliance contend that it is an activity which is strongly identified with the ethos of a local community. They also point out that it takes place, at least in part, on private land. Deadline 2000, on the other hand, argue that the nature of the activity, even when it takes place on private land, is essentially public in character. The Fitzgerald Opinion concluded that a ban would "probably constitute an interference with Article 8 rights", albeit not "one of the more intimate or core aspects of private life". The Pannick opinion concluded that "we do not consider that hunting with dogs falls within the concept of private life at all".

  10.11  If it were the case that private life is interfered with, the issue of a legitimate objective (ie the protection of morals) seemed to the Committee to be crucial. That question seemed to the Committee to turn on two key factors: first, whether hunting with dogs is viewed as inherently or necessarily causing unnecessary suffering; second, whether, if it was so seen by members of the public or Parliament, this could constitute sufficient "moral" grounds in the absence of objective, scientific evidence.

  10.12  Both sides agree that, if Article 8(1) is engaged, the key tests are whether the interference has a legitimate basis (ie whether interference is necessary "for the protection of morals"), whether there is "a pressing social need" for the interference and whether it is proportionate. In reaching a judgment on the former, the European Court of Human Rights would allow a State a "wide margin of appreciation"—on the basis that States are better able to judge what is appropriate in their particular circumstances. Similarly, the domestic court would be likely, we understand, to afford Parliament "a discretionary area of judgment". The Countryside Alliance argue, however, that it would not be sufficient simply to assert that hunting with dogs is immoral: there would need to be objective evidence that hunting involves unnecessary suffering, including by reference to that involved in the other methods. They also point out that this argument is particularly relevant to the draft Bill prepared by Deadline 2000 since the latter would penalise hunting per se, without any need to prove unnecessary suffering. Deadline 2000, on the other hand, argue that the test would be met in the light of the fact that Parliament would have decided on a free vote, after an inquiry and much public debate, that hunting is morally wrong and cruel. The question of a permissible approach to "moral" grounds was also addressed in supplementary representations: a closing submission by the Countryside Alliance and a further Opinion for IFAW, relied on by Deadline 2000. [543]

  10.13  The Countryside Alliance also argue that a ban would fail the "proportionality" test. This is the light of what they regard as the lack of firm scientific evidence in respect of unnecessary suffering and the impact that a ban would have on rural communities and people's lives and livelihoods. Deadline 2000 argue, on the other hand, that their draft Bill meets the test since it does only what is necessary to achieve its purpose—to ban hunting with dogs—and because it contains suitable exceptions and limitations.

Article 1 of Protocol I

  10.14  Article 1 of Protocol I provides as follows:

    "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

    The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

  10.15  Both sides agree that Article 1 of Protocol I is engaged, in the sense that a ban on hunting, though it would not actually deprive someone of the use of land or the animals involved, would constitute a control on their use (according to Deadline 2000) or an interference with the substance of ownership (according to the Countryside Alliance). The issue then turns on whether this is justified in accordance with "the general interest" and whether a fair balance is stuck between the general public interest and the interference with the fundamental rights of individuals.

  10.16  Both sides also agree that the "general interest" test is interpreted by the European Court with considerable latitude to national authorities. The approach to which we were referred is to ask whether Parliament's judgement as to what was in the public interest is "manifestly without reasonable foundation". The Countryside Alliance, however, question whether this "general interest" test is satisfactorily met. They also argue that, even if the Court held that it was met, there is a strong likelihood that a "fair balance" would require economic compensation for owners of packs and for landowners. Deadline 2000, on the other hand, argue that the Bill meets the "general interest" test since it is concerned with the protection of morals and the prevention of cruelty and that it is proportionate to these aims. They also take the view that any losses to landowners would be speculative—other activities such as shooting and humane trapping would be unaffected—and that, in any event, no form of compensation scheme would be required.


  10.17  Legislation to ban hunting might be open to challenge under Article 1 of Protocol I (property rights) and, possibly, Article 8 (respect for private life) of the European Convention on Human Rights. We are not qualified to express an opinion on whether any challenge along these lines would succeed. Key questions would be whether the undoubted interference with property, and possibly with private life, was justified under Convention principles, bearing in mind the nature of the interference and the latitude enjoyed by the national authorities. An important consideration would be whether legislators could point to unnecessary suffering or some other reference point beyond mere disapproval, to reflect the general interest (or, to the extent necessary, the protection of morals and pressing social need). A relevant issue would be the form of the Bill: one which required proof of unnecessary suffering, or some similar test, would be less open to argument than one which banned hunting per se.

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