Appendix 1: Hunting Bill
Letter from the Chair to Lord Whitty, Parliamentary
Under Secretary, Department for Environment, Food and Rural Affairs
The Joint Committee on Human Rights is considering
whether to report further to each House on the Hunting Bill in
the form in which it was brought to the House of Lords from the
House of Commons. When it carried out its initial examination
of this Bill in the form in which it was introduced to the House
of Commons, the Committee was of the opinion that it was likely
to be compatible with human rights (see our Third and Seventh
Reports of this Session). However, it was substantially amended
in the House of Commons. When introducing the amended version
of the Bill to the House of Lords, you made a statement of compatibility
with Convention rights under section 19(1)(a) of the Human Rights
Act 1998.
In the light of this, the Committee would be grateful
for your response to a number of questions. Our startingpoint
is of course the statement made under section 19(1)(a) of the
Human Rights Act 1998; but I should make it clear that the Committee's
remit extends to human rights in a broad sense, not just the Convention
rights under the Act.
The Committee is concerned about the following matters:
Compensation for loss of benefit of contracts
as a result of the Bill: deprivation of property
In the light of the judgment of the European Court
of Human Rights in Chassagnou v. France,[20]
and the decision of Lord Nimmo Smith in the Outer House of the
Court of Session in Petition of Adams for Judicial Review of
the Protection of Wild Mammals (Scotland) Act 2002 and the Protection
of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002,[21]
the Committee concluded that the control of unregulated hunting
is a legitimate aim for the purposes of Article 1 of Protocol
No. 1 to the ECHR,[22]
and that the 'middle way' provisions of the Bill as originally
introduced generally struck a fair balance between the public
interest and the rights of those whom the Bill would affect. However,
the Bill as introduced to the House of Lords contained an absolute
prohibition of many forms of hunting with dogs. This would make
it impossible to give effect lawfully to contracts already entered
into, performance of which would be made unlawful were the Bill
to be enacted and come into force. The economic benefit of such
a contract, already binding on the parties to it, is a possession
for the purposes of P1/1. The legislation would entirely deprive
the economic beneficiary of the benefit of the contract. This
seems to go beyond a mere control or regulation of ownership,
so far as it relates to the rights under those contracts.
The Government accepted in 2001, in relation to the
Hunting Bill introduced but lost in the 2001-02 session, that
Article 1 of Protocol No. 1 to the ECHR generally requires compensation
for a deprivation of property, but considered that, even in relation
to the benefit of existing, legally binding contracts, the legislation
would only amount to a control of property rather than a deprivation
of it.[23]
On the face of it, this seems to fail to distinguish between
two different kinds of possessions: (i) the land over which hunting
takes place and the dogs, etc., used when hunting; and (ii) the
economic benefit accruing from contracts already entered into
for hunting. The Bill would deprive people of possessions of type
(ii).[24]
In any case, even if the effect of the Bill would merely be to
impose a control on property, the availability of compensation
is a relevant matter when considering whether a control over property,
rather than a deprivation of it, strikes a fair balance between
competing rights and interests under Article 1: see particularly
Chassagnou v. France, above, at § 82 of the judgment6
and, in non-hunting contexts, Immobiliari Saffi v. Italy
(1999) 30 EHRR 756 at § 57 and Marcic v. Thames Water
[20022] 2 WLR 932, CA, at para. 116 of the judgment.
Question 1. In the light of this, does the Government—
(a) now take the view that the Bill as introduced
to the House of Lords would merely constitute a control on, rather
than a deprivation of, the right of parties to contracts related
to hunting with dogs to enjoy the benefit of those contracts;
and
(b) continue to take the view that no compensation
for loss of such rights would be required;
and could you set out, in each case, the reasons
for the Government's view.
Compensation for loss of benefit of contracts
as a result of the Bill: control on property, and relevance of
earlier legislative proposals
The Government appears to accept that the Bill as
introduced to the House of Lords would constitute a control on
the use of other property, including land and hunting dogs. However,
the Government considers that such a control would be justifiable
under Article 1 of Protocol No. 1 to the ECHR, even without the
payment of compensation. At the same time, there would be a number
of categories of exempt hunting (clause 2 and Schedule 1), which
can be summarised as follows:
Stalking or flushing out the wild mammal with not
more than two dogs to prevent or reduce serious damage which it
would otherwise cause, or to obtain meat for human or animal consumption,
or to participate in a field trial, on land owned by the person
doing the stalking or flushing out or with the owner's or occupier's
permission, subject to certain other conditions (Schedule 1, paragraphs
1and 2);
Stalking or flushing out the wild mammal with not
more than two dogs to allow the mammal to be hunted by a bird
of prey, on land owned by the person doing the stalking or flushing
out or with the owner's or occupier's permission (ibid., paragraph
6);
Hunting rats or rabbits on land owned by the hunter
or with the permission of the owner or occupier (ibid., paragraphs
3 and 4);
Retrieving hares which have been shot on land which
belongs to the hunter or with the permission of the land's owner
or occupier (ibid., paragraph 5);
Recapturing an escaped wild mammal (ibid., paragraph
7);
Rescuing an injured wild mammal with not more than
two dogs (ibid., paragraph 8);
Carrying out study or observation of the wild animal,
with not more than two dogs (ibid., paragraph 9).
It is not immediately obvious what the rationale
for these exempt categories is, and in some cases how it relates
to the legitimate aim of reducing the suffering of mammals. This
makes it difficult to assess whether the Bill's control on the
use of property strikes a fair balance between the public interest
and the rights of those whose property would be affected.
In so far as the prohibitions in the Bill are capable
of being justified under Article 1 of Protocol No. 1, the question
of compensation arises. As noted above, compensation for a control
on the use of property may be necessary in order to strike the
fair balance required by Article 1. It has been suggested to the
Committee that the scale of any required compensation might fall
to be reduced, perhaps even to nil, where the contracts in question
were entered into in the light of the knowledge that the Government
intended to invited Parliament to prohibit some or all forms of
hunting mammals with dogs.
Question 2: In the light of this—
(a) what is the justification, in terms of the fair
balance required by Article 1 of Protocol No. 1 to the ECHR, for
exempting the categories of hunting mammals with dogs mentioned
above, while prohibiting absolutely all other forms of hunting
mammals with dogs;
(b) does the Government still consider that it would
not be necessary to compensate the owners of property for the
control in the use of property; and
(c) in so far as the Government considers that the
giving of notice of a forthcoming prohibition is relevant to the
need for or scale of compensation, what were the terms and date
on which such notice was given to the public at large or to the
owners of property used for hunting in particular?
Right to respect for private life
In its earlier consideration of the Bill, the Committee
took the view that the Bill might engage the right to respect
for private life if hunting were to be prohibited in private settings,
such as on land owned or occupied by the hunter. Under the Bill
as originally drafted, the Committee thought that any interference
with the right to respect for private life would be justifiable
because it would be in accordance with the law, and could be said
to serve a legitimate aim, respond to a pressing social need and
be proportionate to the object pursued as required under ECHR
Article 8.2. The Bill as introduced to the House of Lords contains
a very much more extensive prohibition on hunting mammals with
dogs, even when it takes place on private property with the consent
of the occupier or owner.
The Explanatory Notes to the Bill seem to indicate
that the Government none the less does not consider that the Bill
as amended engages the right to respect for private life under
ECHR Article 8.1.
Question 3: In view of the amendments to the Bill
in the House of Commons does the Government—
(a) take the view that Article 8.1 is not engaged
by the Bill's provisions, and if so why; and
(b) if Article 8.1 is engaged, consider that the
Bill as amended is a proportionate response to a pressing social
need so as to be justifiable under Article 8.2, and if so, why?
4. Representations
Finally, the Committee would be grateful for a description
of any representations you have received in connection with the
Bill as introduced to the House of Lords in relation to human
rights issues, and to what specific points those representations
were directed.
In view of the imminence of the end of the parliamentary
session, the Committee would be grateful for a response to its
questions as early as possible, and in any event no later than
7 November.
29 October 2003
Memorandum from the Department for Environment,
Food and Rural Affairs
1. This memorandum is submitted by the Department
for Environment, Food and Rural Affairs in response to a letter
from the Chair of the Joint Committee on Human Rights to Lord
Whitty of 29 October 2003.
2. The Committee has raised several questions
in respect of the Hunting Bill as introduced into the House of
Lords following amendment by the House of Commons. It may assist
the Committee to set out briefly the nature of the changes which
were made to the original Bill by the House of Commons.
3. The object of the original Bill introduced
in the House of Commons on 16 December 2002 was to prevent all
cruelty (that is, the causing of unnecessary suffering) to wild
mammals associated with hunting with dogs. The Bill made it an
offence to hunt a wild mammal with dogs unless the hunting was
registered or exempt. The registration system established by the
Bill would have allowed some activities involving the hunting
of a wild mammal with dogs to continue only if they could be shown
on a case-by-case .basis to pass two tests of utility and least
suffering, and was in effect a special sort of exemption. The
Bill also provided for generally applicable exemptions in respect
of certain activities which, if carried out in accordance with
conditions to ensure the protection of animal welfare, would allow
dogs to be used for particular purposes including pest control
without giving rise to unnecessary suffering.
4. At Report Stage, the House of Commons voted
to exclude fox hunting and mink hunting from the scope of the
registration system, and subsequently on Re-committal to remove
the provisions in the original Bill establishing the registration
system. The House of Commons retained the general exemptions and
the prohibition on hare coursing events. The Bill as brought to
the House of Lords therefore makes it an offence to hunt a wild
mammal with a dog unless the hunting is exempt. The general exemptions
remain essentially the same as in the original Bill, although
they were slightly amended and extended during the Bill's consideration
in the House of Commons. The Bill will also still come into force
three months after Royal Assent.
5. The Government considers that the removal
from the Bill of the registration system does not affect the compatibility
of this legislation with the rights protected by the European
Convention on Human Rights (ECHR). As the Committee. notes, Lord
Whitty made a statement under section 19(1)(a)of the Human Rights
Act 1998 to this effect on the introduction of the amended Bill
into the House of Lords on 10 July.
Compensation for loss of benefit of contracts
as a result of the Bill: deprivation of property
6. The Committee has asked the following questions
concerning the rights protected by Article 1 of Protocol 1 ECHR
(Protection of property) as regards the economic benefit of contracts
which will become incapable of being performed as a result of
the coming into force of the present Bill:
Question 1. In the light of this, does the Government—
(a) now take the view that the Bill as introduced
to the House of Lords would merely constitute a control on, rather
than a deprivation of, the right of parties to contracts related
to hunting with dogs to enjoy the benefit of those contracts;
and
(b) continue to take the view that no compensation
for loss of such rights would be required;
and could you set out, in each case, the reasons
for the Government's view.
7. The Government's view is that the changes
made to the Bill during its consideration in the House of Commons
do not materially alter its legal consequences in respect of Article
I of Protocol 1 ECHR. These are summarised in paragraph 68 of
the Explanatory Notes to the amended Bill:
The controls imposed by the Bill are capable for
the purposes of Article 1 of Protocol 1 of constituting an interference
with the peaceful enjoyment of possessions connected with hunting
with dogs and hare coursing events (including associated economic
benefits). In the Government's view this interference is justified
under the second paragraph of the Article on the basis that it
strikes a fair balance between the rights of the individual, and
the general interest of the community in the protection of animal
welfare. It is considered that the controls do not amount to a
deprivation of property but rather to a control of use and so
do not give rise to an obligation to provide compensation to those
affected.
8. Question 1(a). The Government continues to
consider that the restrictions imposed by the Bill constitute
a control of use of property (including the right of parties to
contracts related to hunting with dogs to enjoy the benefit of
those contracts) rather than a deprivation. The reasons for this
view remain as set out in paragraphs 4 and 5 of this Department's
previous memorandum to the Committee of 31 January:
4. The Government accepts that contractual rights
are in some circumstances capable of constituting "possessions"
for the purposes of Article 1 of Protocol 1 to the ECHR. It does
not, however, consider that compensation should be payable for
any economic losses that may be suffered as a consequence of the
Bill by the persons concerned.
5. The Government holds the view it took in 2001
in relation to the earlier Hunting Bill that the current legislation
would amount to an interference with the use and enjoyment of
property rather than a deprivation of property. In the case of
Pinnacle Meat Processors Company v UK (Application 33298/96),
the claimants complained about the loss of their de-boning business
in the wake of the restrictions brought in to combat BSE. The
European Commission of Human Rights noted that the loss of business
suffered by the applicants was more akin to a control of use rather
than a deprivation of property. Accordingly, the Commission applied
the "control of use" test. Similarly, in the case of
Slough and King v UK Government (Application Nos. 37679/97
and 37682/97), the applicants also complained about the loss of
part of their business (the sale of hand guns, banned post Dunblane),
and the European Court of Human Rights applied the control of
use test. The Government considers that the principles followed
in these cases are equally applicable to possessions comprising
land over which hunting takes place, the dogs used for hunting,
and the economic benefits accruing from contracts connected with
hunting.
The Committee accepted (in paragraph 20 of its Seventh
Report of Session 2002-03) that it was legitimate for the Government
to take this view on the basis of the current state of the Strasbourg
case-law.
9. To the extent that the points made in paragraph
6 of the previous memorandum to the Committee relate to the registration
system they are obviously no longer relevant, but it remains the
case that limited forms of hunting with dogs will be permitted
after the Bill is enacted under the exemptions in Schedule 1.
For example, the exemption in paragraph I permits up to two dogs
to be used above ground to stalk and flush out wild mammals to
be shot for pest control and other purposes. The exemption in
paragraph 2 also permits gamekeepers and others to use a single
dog below ground to protect birds kept for shooting. The exemptions
will therefore allow the performance of some existing contracts
to provide services involving hunting with dogs after the Bill
becomes law, while other contracts may be renegotiated to allow
hunting in compliance with the exemptions.
10. Question 1(b). The Government continues to
consider that the restrictions imposed by the Bill do not give
rise to a requirement to pay compensation to those affected, for
the reasons set out in paragraphs 7 to 9 of the previous memorandum:
7. The Committee refers to paragraphs 28-29 and
42 of the memorandum submitted on 8 March 2001 by the Home Office
on the previous Hunting Bill. These paragraphs, together with
paragraphs 24-27, 36-41 and 43, set out the reasons why the Government
considered that Article I of Protocol 1 did not require the payment
of compensation for interference to a person's use and enjoyment
of contractual rights in respect of that Bill. It was noted that
there are numerous occasions where new legislation interferes
with existing contractual rights without the individuals being
compensated. The same principles apply to the current Bill. The
contracting parties will have been aware for a considerable period
of time of the intention of the Government to legislate on hunting
with dogs. The current Bill is the result of an 'extensive and
well-publicised process of consultation over a long period.
8. The Government takes the view that persons
entering contracts in connection with hunting with dogs have no
legitimate expectation that any or all types of this activity
would continue to be lawful. This view is supported by the admissibility
decision of the European Court of Human Rights in the Slough
and King case. In that case, the Court held that the applicant
firearms sellers had no legitimate expectation that the use of
particular types of firearm, including handguns, would continue
to be lawful because of the progressively more restrictive legislative
framework since 1920.
9. This decision also confirms the wide margin
of appreciation conferred on national authorities when determining
whether compensation should be payable in respect of an interference
with possessions. The Court made clear that national authorities
must enjoy a wide margin of appreciation in determining not only
the necessity of the measure of control concerned but also the
types of loss resulting from the measure for which compensation
will be made. The legislature's judgment in this connection should
in principle be respected unless it is manifestly arbitrary or
unreasonable.
The Committee accepted (in paragraph 20 of its Seventh
Report of Session 2002-03) that these considerations meant that
the Government was entitled to take the view that the Bill would
be likely to be compatible with Article 1 of Protocol 1.
Compensation for loss of benefit of contracts
as a result of the 'Bill: control on property, and relevance of
earlier legislative proposals
11. The Committee has asked the following further
questions concerning the rights protected by Article 1 of Protocol
1 in respect of the exemptions contained in the amended Bill and
the payment of compensation.
Question 2: In the light of this—
(a) what is the justification, in terms of
the fair balance required by Article I of Protocol No. I to the
ECHR, for exempting the categories of hunting mammals with dogs
mentioned above, while prohibiting absolutely all other forms
of hunting mammals with dogs;
(b) does the Government still consider that
it would not be necessary to compensate the owners of property
for the control in the use of property; and
(c) in so far as the Government considers
that the giving of notice of a forthcoming prohibition is relevant
to the need for or scale of compensation, what were the terms
and date on which such notice was given to the public at large
or to the owners of property used for hunting in particular?
12. Question 2(a). The Government's view is that
each of the general exemptions in Schedule 1 to the amended Bill
can be objectively justified and that together they reflect a
fair balance between the general interest in the prevention of
cruelty to animals and the rights of persons who wish to hunt
wild mammals with dogs.
13. The exemptions allow the continuation of
specified activities involving the hunting of wild mammals with
dogs where these will not give rise to unnecessary suffering.
The rationale for the exemptions is thus consistent with the basic
intention of the Bill, which is to prevent the cruelty associated
with hunting with dogs. The exemptions recognise that the use
of dogs may, in .certain circumstances and subject to appropriate
controls, be the most acceptable method of achieving necessary
purposes. These include the prevention of serious damage to livestock,
crops, other property or the biodiversity of an area (paragraph
1), the protection of birds kept for shooting (paragraph 2), the
control of rats and rabbits (paragraphs 3 and 4) and the recapture
of wild mammals (paragraph 6). Activities which are technically
hunting but which do not give rise to animal welfare concerns
in respect of the use of dogs are also exempted, such as field
trials (paragraph 1), the retrieval of shot hares (paragraph 5),
falconry (paragraph 6) and the tracking of a wild mammal for research
and observation (paragraph 9). In addition, the exemption concerning
the rescue of wild animals (paragraph 7) permits hunting for the
animal welfare purpose of relieving the suffering of an injured
wild mammal.
14. Conditions are imposed where necessary to
protect animal welfare and to avoid abuse, and all the exemptions
require prior permission to be obtained from the occupier or owner
of the land (or a constable in the case of the recapture and rescue
exemptions in paragraphs 7 and 8).
15. Question 2(b). See the answer to Question
1(b) above. It is accepted that the availability of compensation
is a relevant matter in considering whether a control over property
strikes a fair balance between competing rights and interests,
but it is well established law that the control of use does not,
as a rule, give rise to any right to compensation (Pinnacle
Meat Processors Company v United Kingdom)[25].
16. Question 2(c). The extensive publicity which
all proposed legislation on hunting receives, particularly among
those groups most directly concerned, means that the Government
considered that there was no need to give any formal public notice
concerning the effects of the amendment of the Bill by the House
of Commons. In any case the proposals in the original Bill, which
would also have introduced severe restrictions on hunting with
dogs, had been already been widely publicised.
Right to respect for private life
Question 3: In view of the amendments to the Bill
in the House of Commons does the Government—
(a) take the view that Article 8,1 is not
engaged by the Bill's provisions, and if so why; and
(b) if Article 8.1 is engaged, consider that
the Bill as amended is a proportionate response to a pressing
social need so as to be justifiable under Article 8.2, and if
so, why?
17. The Government considers that the changes
made to the Bill during its consideration in the House of Commons
do not alter its legal consequences in respect of Article 8 ECHR
(Respect for private life). As indicated in the Home Office's
memorandum to the Committee of 8 March 2001:
In the Government's view, the nature of hunting activities,
even when conducted on private land or by an individual, is essentially
public in nature (paragraph 45).
18. The Bill as amended does not materially differ
from the original Bill in its effect for the purposes of Article
8 on the use of dogs for hunting on private land.
19. Question 3(a). The Government continues to
consider that Article 8 is not engaged by the Bill because hunting
with dogs falls outside any meaning of 'private life' recognised
in the jurisprudence of the European Court of Human Rights. This
is supported in respect of hunting by organised groups by the
recent judgment of the Court of Session in Adams:[26]
Foxhunting appears to me to have no characteristic
that would bring it within the concept of private life. It is
carried on in the open air. It involves a fairly large number
of participants. It is open to all comers and is thus inclusive
rather than exclusive. It may be carried on, principally at least,
on private land rather than on public roads, but it is private
land to which all who wish to participate are admitted for the
occasion. It constitutes a spectacle for them as well as for those
who use the public roads to follow the hunt. … As it was
put in Botta v Italy, foxhunting gives rise to interpersonal
relations of such broad and indeterminate scope that it cannot
be described as the private life of its participants. It goes
well beyond the "certain degree" contemplated in Niemietz
v Germany, and cannot be regarded as falling within the "personal
sphere" recognised by the European Court of Human Rights
(paragraph 103).
This approach was also followed by the Court of Session
in Whaley[27]
(paragraphs 63 to 65).
20. Equally, the Government considers that hunting
by individuals does not engage Article 8. In Bruggemann and
Scheuten v Federal Republic of Germany[28]
the European Commission for Human Rights
held that:
there are limits to the personal sphere. While a
large proportion of the law existing in a given State has some
immediate effect on the individual's possibility of developing
his personality by doing what he wants to do, not all of these
can be considered to constitute an interference with private life
in the sense of Article 8 of the Convention. In fact, as the earlier
jurisprudence of the Commission has already shown, the claim to
respect for private life is automatically reduced to the extent
that the individual brings his private life into contact with
public life or into close connection with other protected interests
(paragraph 55).
In the Government's view, hunting by individuals
is not a matter of private life for the purposes of Article 8
because it has serious consequences for the protection of the
welfare of the wild mammals being hunted.
21. Question 3(b). Even if the activities concerned
fall within the scope of Article 8.1, the Government is satisfied
that interference with this right to restrict hunting with dogs
by means of the measures contained in the Bill would be justifiable
under Article 8.2 as being in accordance with the law and necessary
in a democratic society for the protection of morals. There is
a substantial body of existing legislation aimed at the protection
of animal welfare, and it is considered that the restrictions
on hunting with dogs imposed by the Bill address a pressing social
need and are proportionate to the legitimate aim pursued of preventing
cruelty.
Representations
22. The Committee has asked for a description
of representations received in connection with the Bill as introduced
to the House of Lords which relate to human rights issues, and
the specific points to which those representations were directed.
Since the House of Commons Report stage, letters received by the
Department have included various references concerning the compatibility
of the Bill as amended with human rights provisions. No new substantive
representations have been received. There have also been references
to human rights issues in Parliamentary debates on the Bill, notably
the Second Reading debate in the House of Lords on 16 September.
6 November 2003
2 20 
