Joint Committee On Human Rights Third Report


28. This is a Government Bill, in respect of which the Rt. Hon. Margaret Beckett MP has made a statement of compatibility under section 19(1)(a) of the Human Rights Act 1998. It is published with Explanatory Notes,[17] although these do not usefully identify any of the Convention rights engaged by the Bill.[18] The Bill as introduced would—

  • prohibit hare coursing (clause 7);

  • prohibit the hunting of stags with dogs (clause 6);

  • prohibit the hunting of other wild mammals with dogs (clause 1) unless the hunting is either (a) registered in accordance with clauses 2 and 8, or (b) exempt in accordance with clause 3 (clause 1).

It would also be an offence knowingly to permit one's own land to be used for the unlawful hunting of wild mammals, including stags, with dogs (clause 4).

29. An earlier Hunting Bill was introduced to Parliament in the 2000-01 session. Our predecessors in that session engaged in correspondence with the Government about its human rights implications in February and March 2001, and the correspondence was published in April 2001.[19] Ultimately the Bill was lost. The current Bill is its replacement. Some of the Committee's questions, and the Government's replies, in relation to the earlier Bill are also relevant to this one. Since that exchange, the Scottish Parliament's legislation to control hunting with dogs has been held, 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[20] (hereafter Adams) to be compatible with Convention rights and intra vires the Parliament under the Scotland Act 1998.

30. We have given preliminary consideration to the question whether the Bill engages the right to peaceful enjoyment of possessions, the right to respect for private life, the right to respect for the home, and the right to be free from discrimination.

Right to peaceful enjoyment of possessions

31. A prohibition on using one's own dogs for hunting, and a prohibition on permitting one's own land to be used for hunting with dogs, would each restrict the way in which people could use their own property, and engage the right to quiet enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter P1/1). People who have already entered into contracts for provision of hunting facilities would be likely to suffer loss if it became impossible, through illegality, to perform the contracts. The economic benefits of contracts are also possessions for the purposes of P1/1. P1/1 provides—

Every natural or legal person is entitled to the quiet 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.

32. In order to be justifiable under P1/1, the European Court of Human Rights has held that an interference with property rights must serve a legitimate public interest, and must strike a fair balance between the public interest and the right affected. Particularly strong reasons will be needed to justify a refusal to compensate people for loss flowing from the interference. The Court has accepted, in Chassagnou v. France,[21] that the control of unregulated hunting is a legitimate aim for the purposes of P1/1.[22] The control of cruelty to animals, however that is assessed, has also been accepted in Scotland as a legitimate aim of legislation such as is contained in the current Bill.[23] The question is whether the prohibitions and regulation contained in the Bill strike a fair balance between the legitimate public interest pursued and the rights of property owners. In this context it must be borne in mind that no provision is made in the Bill to compensate those who suffer loss as a result of its provisions.

33. The Bill affects several kinds of possessions within the meaning of P1/1. The freedom to use one's property for hunting would be affected. The right of people who make a living from managing foxhounds for hunting purposes, or are otherwise employed by hunts, to continue to do so is an economic interest which has been held to fall within the protection of P1/1. This is particularly clear where part of the emoluments is a tied house for the use of a person who exercises those functions.[24] Similar considerations have been held to apply to the hounds.[25] In each of these cases, the Bill would constitute a control of the use of property, and would engage P1/1. The question is whether the Bill strikes a fair balance between the general interest and the rights of those people. In addition, for reasons to be explained below, the loss of profits which would otherwise have accrued from existing contracts for hunting would, in our view, amount to deprivation of property for the purposes of P1/1.

34. When replying to our predecessors' questions about the earlier Hunting Bill in 2001, the Home Office (which was responsible for that Bill) argued that nobody would have been deprived of their possessions by the Bill. In relation to the prohibition of hunting (the last of the three options presented to Parliament that Bill), the provisions would merely have been a restriction on the use to which people could put their possessions. Furthermore, some hunting with dogs would have been allowed to continue. There would have been a careful consideration of the advantages and disadvantages of controlling hunting with dogs, with a detailed inquiry by the Burns Committee and extended debate in Parliament and in the country. Landowners, dog-owners and hunters would have been well aware of the debate for some time. While the Government accepted that there was normally a duty to compensate for deprivation of possessions, it took the view that there was no such requirement in relation to measures constituting only a control of the use of property rather than a deprivation.[26] Many other European countries controlled or entirely prohibited hunting with dogs. In the light of those considerations, the Government considered that the Bill struck a fair balance between the public interest and the rights of those affected by it.[27]

35. Many of those considerations would apply equally to the present Bill. In particular—

  • clauses 1 and 5 of, and Schedule 1 to, the Bill would allow dogs to be used for hunting wild mammals for a number of purposes, including hunting of rats, rabbits, and shot hares, use of dogs in falconry, and recapturing or rescuing wild mammals, under certain conditions, on land which belongs to the hunter or over which the hunter has been given permission to hunt, as well as other specified circumstances;

  • it would also be possible for a person to participate in registered hunting under clauses 5 and 8 of the Bill, with disputes being determined by a registrar, to be appointed under clause 9, with an appeal to a Hunting Tribunal, to be established under clause 10 and Schedule 2;

  • it would still be possible for people to own land and dogs previously used for hunting which would be prohibited by the Bill, and to use them for purposes other than prohibited hunting;

  • in considering the present Bill, Parliament has the advantage of even more debate than had taken place in 2000-01, and the additional advantage of being able to consider the early impact of the Protection of Wild Mammals (Scotland) Act 2002, passed by the Scottish Parliament.

36. That being so, in our view it would be legitimate for the Government to argue, and for each House to conclude if it saw fit, that the provisions of the Bill as introduced by the Government to the House of Commons generally strike a fair balance between the public interest and the rights of those whom the Bill would affect. This was the conclusion of Lord Nimmo Smith in Adams in relation to broadly similar provisions in the Scottish legislation.[28] Subject to one proviso (considered in the next paragraph), we consider that the Bill as first introduced would be likely to meet the requirements of P1/1 despite making no provision for compensation to be paid to owners of land and dogs currently used for hunting.

37. Our one reservation relates 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 goes beyond a mere control or regulation of ownership. The Government accepted in 2001 that P1/1 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.[29] We are at present not persuaded by this. One should 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.

38. The Bill would, in our view, deprive people of possessions of type (ii).[30] Deprivation of possessions without compensation requires particularly strong justification under P1/1. We have therefore asked the Department what it considers the justification to be, and report the matter to both Houses. Our concern applies only to contracts already entered into for hunting in the future. In view of the publicity surrounding the Bill, it might be easier to justify withholding compensation for depriving people of the benefits of such contracts entered into after the Bill was introduced to the House. However, if the Bill were to be amended to extend the range of types of prohibited conduct, for example by prohibiting all hunting with dogs, without any forms of registered or exempt hunting, the lack of any opportunity for contracting parties to gain the benefit of their contracts would seem to strengthen the case for compensation to be paid, at least to people whose contracts were for activities which would not have been prohibited by the Bill as originally introduced.

Right to respect for private life

39. Hunting with dogs is essentially a public activity. Although it may take place on private land, and may form an important part of the participants' leisure activities and lifestyle, it typically involves a large number of people operating over a large area in the open, and often occurs partly on public highways, footpaths or bridleways. In Adams, the petitioners argued that a ban on hunting engaged the right to respect for private life under ECHR Article 8. Lord Nimmo Smith rejected the claim, holding that, while private life is more extensive than the idea of privacy, there has to be something essentially personal or private about it. After considering a number of decisions of the Strasbourg Court about the nature of private life under Article 8, Lord Nimmo Smith said—

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. It is, I believe, because of these features that counsel for the petitioners thought it necessary to place so much emphasis on Dr. Marvin's discussion of the social aspects of foxhunting. These very aspects appear to me to emphasise the public rather than the private nature of the activity, because its social consequences are so diffuse. As it was put in Botta v. Italy,[31] 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,[32] and cannot be regarded as falling within the 'personal sphere' recognised by the European Court of Human Rights.[33]

40. We consider that these comments would apply equally in relation to the present Bill as first introduced to the House of Commons. We therefore think that it would be legitimate for the Government to argue that the Bill does not engage the right to respect for private life.

41. The position might be different, however, if amendments were introduced to prohibit other forms of hunting with dogs in less public situations. Were that to happen, the right might be engaged. It would then be necessary to decide whether the interference with the right was justified under ECHR Article 8.2. We accept that it would be in accordance with the law, and would serve the legitimate aim under Article 8.2 of limiting cruelty to animals, which seems to us to constitute an aspect of protection of morals, at least according to certain ethical codes. It would then be necessary to establish whether the interference was necessary in a democratic society for that purpose. This would involve asking whether it is a response to a pressing social need, interferes no further than necessary to achieve the legitimate objective, and is proportionate to that objective. In Adams, Lord Nimmo Smith would have answered these questions affirmatively, taking account of the fact that the Scottish Parliament had concluded that the method of killing foxes with dogs was cruel and less efficient than other methods, while providing exceptions for those other methods.[34] If the Bill were to be amended in a way that engaged the right to respect for private life, we would have to seek an explanation of the reasons for thinking that the amended version of the Bill was justifiable under Article 8.2. At present, the issue does not arise.

17   HL Bill 10-EN Back

18   ibid., para. 81 Back

19   Joint Committee on Human Rights, Third Special Report of 2000-01, Scrutiny of Bills, HL Paper 73, HC 448, Appendices 1 and 2, pp. vii-xix Back

20   Judgment of 31 July 2002, Lord Nimmo Smith (Outer House of the Court of Session) Back

21   Judgment of 29 April 1999, 29 EHRR 615 Back

22   See particularly para. 108 of the Court's Judgment, and note also para. 105 of the decision of the European Commission of Human Rights in the same case Back

23   See Adams at para. 92 of the judgment of Lord Nimmo Smith, relying on Tre Traktörer Aktiebolag v. Sweden (1989) 13 EHRR 309, Eur. Ct. H.R. Back

24   See Adams at para. 129 of the judgment Back

25   ibid Back

26   Support for this view may be found in the speech of Lord Hoffmann in R. (Alconbury Developments and others) v. Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 WLR 1389, HL, at para. 72. Back

27   Memorandum from the Home Office printed in Joint Committee on Human Rights, Third Special Report of 2000-01, Scrutiny of Bills, HL Paper 73, HC 448, Appendix 2, p. xii, paras. 36-44; see also the extracts from Appendix 9 to the Burns Report, on the position in other European countries, reproduced ibid. at pp. xiv-xvii Back

28   See Adams at para. 130 of the judgment Back

29   Memorandum from the Home Office printed in Joint Committee on Human Rights, Third Special Report of 2000-01, Scrutiny of Bills, HL Paper 73, HC 448, Appendix 2, p. xi, paras. 28-29 and p. xii, para. 42 Back

30   Although pleaded, this issue was not argued by counsel or considered in the judgment in Adams Back

31   (1998) 26 EHRR 2241, Eur. Ct. H.R. The case was concerned with the freedom of a disabled person to have access to a beach when on holiday. [Footnote added] Back

32   (1992) 16 EHRR 97, Eur. Ct. H.R. The case was concerned with an extension of protection of Article 8 to the offices of lawyers in order to protect clients' confidentiality. The Court held that the concept of 'private life' had a certain degree of flexibility, so that the protection of Article 8 could in appropriate circumstances be asserted on business premises. [Footnote added] Back

33   Adams at para. 103 of the judgment Back

34   Adams at para. 104 of the judgment Back

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