4.Memorandum from the Department for Environment,
Food and Rural Affairs
HUNTING
BILL
1. This memorandum is submitted by the Department
for Environment, Food and Rural Affairs in response to a request
for comments on a point concerning the Hunting Bill in a letter
from the Chair of the Joint Committee on Human Rights to the Minister
for Rural Affairs of 21 January 2003. The Committee has indicated
that, subject to this point, its provisional opinion is that the
Hunting Bill is compatible with the relevant human rights obligations.
2. Before addressing the specific point raised by
the Committee, it may be helpful to set out briefly the context
in which the present Bill would have an effect on hunting.
3. In summary, the Bill would establish a registration
system for most forms of hunting with dogs of wild mammals. To
be registered, hunting would have to meet the two tests of utility
and least suffering set out in clause 8. Hunting would have to
be shown on a case-by-case basis to be necessary to prevent
serious damage to livestock, crops, other property or the bio-diversity
of an area, and also to be the method of preventing that damage
which causes the least suffering to the wild mammals to
be hunted. Hare coursing and deer hunting would be prohibited,
as the Government can see no circumstances in which these activities
could meet the two tests. The Government considers that it is
right that cruelty to wild mammals should be prohibited.
4. The Government accepts that contractual rights
are in some circumstances capable of constituting "possessions"
for the purposes of Article I of Protocol 1 to the ECHR. However,
it does not consider that compensation should be payable for any
economic losses that may be suffered as a consequence of the Bill.
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.
6. To the extent that the Bill would impose a requirement
for registration and not an absolute bar, performance of contracts
relating to hunting would not necessarily become unlawful on the
coming into force of the Bill. Furthermore, Schedule I to the
Bill provides for categories of exempt hunting including stalking
and flushing out. Extensive provision is made for transitional
arrangements in clause 51. If an application for registration
is made in the two months before the Bill comes fully into force
(three months after enactment), the hunting concerned would be
permitted to continue (subject to conditions) until the application
has been determined by the registrar or, in the event of an appeal,
by the independent Hunting Tribunal. This would give persons who
are already parties to contracts for hunting additional time to
renegotiate their obligations if they consider this appropriate
in the light of the provisions of the Bill.
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 I 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.
10. The Committee has asked for a description of
representations received in connection with the current Bill which
relate to human rights issues, and the specific points to which
such representations were directed. Such representations as have
been received have been couched in general terms and many of them
have included the suggestion that the continuation of traditional
forms of hunting is or should be protected by the European Convention
on Human Rights. There have also been references to the rights
protected by the United Kingdom's international commitments under
the Rio Declaration on Environment and Development 1992, in particular
Principle 22 which refers to the role indigenous people and their
communities in relation to environmental management and development.
On the other hand many other representations have argued that
there can be no right to be cruel.
31 January2003
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