15. The Bill would
- prohibit hare coursing (clause 7);
- prohibit the hunting of stags with dogs (clause
- 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).
16. Following our initial consideration of the Bill,
we were satisfied that the Government was largely entitled to
take the view that the Bill as introduced to the House of Commons
was compatible with human rights, taking account of the decision
of the Outer House of the Court of Session holding legislation
of the Scottish Parliament to ban hunting with dogs to be compatible
with Convention rights and intra vires the Parliament under
the Scotland Act 1998.
17. However, we had one reservation. That concerned
the effect of the Bill on 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 Article 1 of Protocol No. 1 to the ECHR ('P1/1'). In relation
to the Hunting Bill introduced in the 2000-01 session, the Government
had accepted 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, and that accordingly it was unnecessary to compensate people
for loss of the benefit of hunting contracts in order to comply
with P1/1. Our Chair
wrote on 21 January 2003 to Mr. Alun Michael M.P., the Minister
for Rural Affairs and Urban Quality of Life, asking whether the
Government still took that view, and, if so, why.
18. The Government's response came in the form of
an explanatory memorandum attached to a letter from the Minister,
dated 31 January 2003.
It begins by setting out the two tests which would have to be
satisfied for hunting wild mammals with dogs to be approved under
the proposed registration system: (a) the hunting would have to
be necessary to prevent serious damage to livestock, crops,
other property or the bio-diversity of an area; and (b) it would
have to be the method of controlling the damage, etc., causing
least suffering to the hunted mammal.
19. The Memorandum goes on to say that the Government
remains of the view that the legislation would merely operate
as a control on rights. It would not amount to a deprivation of
the rights, even though the 'control' would result in the almost
inevitable destruction of a person's ability to generate income
from a previously legitimate business activity.
The Government relies particularly on decisions of the European
Court of Human Rights holding that loss of all or part of a business
as a result of controls on meat processing to combat BSE and controls
on hand-guns after the Dunblane massacre led to a control on use
rather than a deprivation.
It points out that the Bill would not necessarily frustrate all
contracts for hunting wild mammals with dogs, because it would
introduce a registration system rather than a ban, and clause
51 would provide for transitional arrangements giving time for
parties to hunting contracts to re-negotiate their positions.
20. On the current state of the Strasbourg case-law
we accept that it is legitimate for the Government to take the
position that the Bill would only restrict the use of possessions,
rather than deprive people of them.
21. On that basis, the Government takes the view
that refusing to pay compensation would be justified on two grounds
- there is no legitimate expectation that a previously
lawful activity will continue to be lawful if there has been a
legislative trend towards greater restrictions over a period (a
view which would be persuasive even if the Bill were to be held
to deprive people of property);
- the state has a wide margin of appreciation when
deciding whether to pay compensation in respect of an interference
with possessions (an argument not applicable if the Bill were
held to deprive people of property).
22. We accept that these considerations mean that
the Government is entitled to take the view that the Bill as introduced
to the House of Commons would be likely to be compatible with
23. At present, and subject to any amendments
being introduced to the Bill at a later stage, we do not consider
that the Bill gives rise to a significant risk of incompatibility
with Convention rights.
9 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
Judgment of 31 July 2002, Lord Nimmo Smith (Outer House of the
Court of Session). See Joint Committee on Human Rights, Third
Report of 2002-03, Scrutiny of Bills: Further Progress Report,
HL Paper 41/HC 375, pp 15-19, paras 28-43 Back
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
The letter was published as an appendix to our Third Report of
2002-03, Ev 5 Back
See below, Ev 5-7 Back
See para 3 of the Government's memorandum, Ev 5 Back
See paras 4-5 of the Government's memorandum, Ev 6 Back
Pinnacle Meat Processors Co. and 8 others v. United Kingdom,
App. No. 33298/96, Eur. Commn. HR, admissibility decision of 21
October 1998 (inadmissible); John and Margaret Slough and A.J.
and W. King and 10 others v. United Kingdom, Eur. Ct. HR,
App. Nos. 37679/97 and 37682/97, admissibility decision of 26
September 2000 (inadmissible) Back
See paras 6-7 of the Government's memorandum, Ev 6 Back
See paras 8-9 of the Government's memorandum, Ev 6 Back