Joint Committee On Human Rights Third Special Report


APPENDIX 2

Memorandum by the Home Office

HUNTING BILL

  This memorandum is submitted by the Home Office in response to the request for comments on the Hunting Bill in a letter from the chairman of the Joint Committee on Human Rights to the Home Secretary of 14 February 2001.

INTRODUCTION

  2.  The Home Secretary has made a statement under section 19(1)(a) of the Human Rights Act 1998 indicating that, in his view, the provisions of the Bill are compatible with the convention rights. He believes that, where the Convention rights are engaged, the proposals are proportionate to the legitimate aim pursued and the judgments that have been made about the balance to be struck between competing rights and responsibilities can be objectively justified.

  3.  The jurisprudence of the European Court of Human Rights,[4] and the early jurisprudence of the English courts on the Human Rights Act 1998,[5] has established that the legislature and the executive have a margin of discretion in forming a view as to whether particular measures are justified within the terms of those articles of the ECHR which permit of exceptions.

  4.  Certain provisions contained in the Bill as introduced in the House of Commons confer discretionary powers on public authorities. In the Government's view, all these powers are capable of being exercised in a way which is compatible with the Convention. Those on whom these powers are conferred—the Hunting Authority, the Secretary of State, the police and the courts—will be obliged by section 6 of the Human Rights Act 1998 to exercise them in a way which is compatible with the Convention rights.

BACKGROUND

  5.  Because of the unusual format of the Bill as introduced in the House of Commons, it may be helpful to the Committee to provide some background to the Bill and its structure.

  6.  The controversial issue of hunting wild mammals with dogs has been the subject of much discussion, debate and demonstration over the years. There have been 22 Private Member's Bills relating to hunting with dogs introduced in the past 20 years. It is an issue on which the Government remains neutral.

  7.  In December 1999, a committee chaired by Lord Burns was appointed to carry out an inquiry into hunting with dogs in England and Wales. The Committee was asked to inquire into the practical aspects of hunting with dogs of foxes, deer, hares and mink. The Committee was not asked to recommend whether hunting with dogs should be banned.

  8.  Following publication of the report of the Committee ("the Burns Report") in June 2000, (Cm4763), the Government announced that it would bring forward a Bill so as to enable Parliament to have a proper opportunity to give legislative effect to its wishes on the issue of hunting with dogs. The Bill is intended to resolve the issue once and for all.

  9.  The Bill as introduced in the House of Commons on 8 December 2000, contained three self-contained, mutually exclusive schedules providing for, respectively, self-regulation of hunting (Schedule 1), regulation of hunting through a licensing authority (Schedule 2) and prohibition of hunting (Schedule 3). The House of Commons (in Committee of the whole House) on a free vote chose the option providing for prohibition, Schedule 3, which was subsequently debated in Standing Committee.

  10.  The Bill as introduced in the House of Lords on 28 February 2001 contains one Schedule. The Government has made a commitment to table amendments to the Bill which will enable the House of Lords to have the same choice between the three options as the House of Commons had.

  11.  For the purposes of this Memorandum, the Bill is assumed to contain the three Schedules as described in paragraph 9 above. The remainder of the Memorandum deals with the specific questions on the Bill raised by the Committee.

OPTION 2: REGULATION BY THE HUNTING AUTHORITY

1.  The implications for the right to property and possessions of people wishing to hunt on their own land.

  (a)  Please would you inform the Committee of your reasons for being satisfied that Option 2 is compatible with ECHR Article 1 of Protocol No 1 notwithstanding the absence of provision to pay compensation for interference with people's enjoyment of their property.

THE LICENSING SYSTEM

  12.  Schedule 2 to the Bill as introduced in the House of Commons establishes an independent Hunting Authority to regulate hunting through a licensing system. The constitution and functions of the Authority are set out in detail in Parts I to III of Schedule 2. The composition of the Authority is intended to ensure its impartiality and independence.

  13.  The Authority is responsible for issuing hunting licences and drawing up codes of practice dealing with the various kinds of regulated hunting. By paragraph 39(1) of Schedule 2, each code of practice must in the Authority's opinion be designed to improve or protect animal welfare, protect the safety of members of the public, and discourage trespass. (The Burns Committee identified in chapter 9 of their report certain hunting practices which were of concern for animal welfare reasons, and also expressed concern for the many instances of trespass, disruption and disturbance caused by hunts. Schedule 2 is intended to address these concerns while protecting the right to hunt.)

  14.  A person who wishes to hunt wild mammals with dogs on his own land must hold a licence, or participate in a licensed hunt, in the same way as any other person. Hunting licences are granted on the basis of the applicant's suitability and competence. A licence will only be refused or revoked if a person is not considered to be suitable or sufficiently competent.

  15.  The Authority has the power to grant, refuse, vary, suspend or revoke hunting licences. Any such determination by the Authority is subject to a right of appeal to the magistrates' court. The court may make such order as it thinks appropriate, in particular it may direct the Authority to issue, or vary the terms of, a hunting licence.

  16.  Certain forms of hunting with dogs are not subject to the licensing regime—these are classified as "unrestricted" and are set out in Part VI of Schedule 2. These activities tie in with the exceptions from the prohibition on hunting set out in Part II of Schedule 3. The Committee may be aware that certain amendments to Part II of Schedule 3 were accepted at Report stage in the House of Commons. These amendments will be reflected in Part VI of Schedule 2 as it will appear in the amendment to be tabled in the House of Lords (as explained at paragraph 10 above). Thus "unrestricted" hunting activities for the purpose of Schedule 2 (as it will appear in the amendment to be tabled in the House of Lords) will be:

    (i)  deer stalking;

    (ii)  rodent and rabbit hunting;

    (iii)  stalking and flushing out of foxes and hares for certain purposes;

    (iv)  retrieval of shot hares; and

    (v)  searching for escaped, diseased or seriously injured wild mammals.

  Any landowner will therefore be able to conduct such activities without a licence, and without participating in a licensed hunt, as they will be outside the scope of the licensing regime.

  17.  The Bill (and therefore the licensing system provided for in Schedule 2) is only concerned with hunting wild mammals with dogs. It does not affect hunting activities conducted without dogs, such as shooting, nor does it affect activities directed towards other classes of animal, such as game birds.

HUMAN RIGHTS COMPATIBILITY

  18.  The Government is satisfied that Schedule 2 is compatible with Article 1 of Protocol 1 ECHR notwithstanding that there is no provision for the payment of compensation to a landowner who is refused a hunting licence or who has his licence revoked.

  19.  The Government is satisfied that the right to pursue a leisure activity is not a "possession" for the purposes of Article 1 of Protocol 1.[6] In relation to possessions such as land, the Government is satisfied that any interference with a person's peaceful enjoyment of their possessions through the licensing system provided for in Schedule 2 constitutes a control of use of property and does not involve any deprivation of possessions.

  20.  A landowner's ability to conduct certain hunting activities on his own land will be dependent on his obtaining a hunting licence or participating in a licensed hunt. The licensing system is designed to ensure that those who conduct certain hunting activities are suitable and competent to do so, and that they comply with standards of acceptable behaviour set out in codes of practice. Certain forms of hunting with dogs will remain unrestricted, therefore any landowner (whether or not he holds a licence) will be able to conduct such activities. Hunting activities which do not involve the use of dogs, or which are not directed at wild mammals, will be unaffected as they are outside the scope of the Bill and therefore the licensing system. In addition, the land affected can continue to be used for other purposes such as drag hunting, or other equestrian and non-equestrian activities.

  21.  As mentioned above, the issue of hunting with dogs has been the subject of debate for many years. Landowners have long been aware of the prospect that hunting with dogs might be stopped completely—numerous Private Member's Bills providing for a ban on hunting have been supported by an overwhelming majority of MP's in the House of Commons. The regulation of hunting under Schedule 2 would allow all forms of hunting with dogs to continue, some forms under licence, others unrestricted. If Schedule 2 is enacted, a decision will have been taken by Parliament to introduce regulation of hunting through a licensing system, following a detailed inquiry (by the Burns Committee), much public debate, and detailed consideration in Parliament itself.

  22.  While the Government accepts that Article 1 of Protocol 1 imports a requirement to pay compensation in most cases involving deprivation of property, it is satisfied that there is no similar requirement in relation to measures constituting a control of the use of property.

  23.  As explained at paragraphs 36 to 43 below, the Government considers that the interference with the peaceful enjoyment of possessions which is inherent in the prohibition on hunting provided for in Schedule 3 is justifiable in striking a fair balance between the rights of the individual and the general interest of the community, notwithstanding the absence of provision for compensation in that Schedule. It follows that the Government considers that any interference with the peaceful enjoyment of possessions such as land which is inherent in the licensing system provided for in Schedule 2 is also justifiable notwithstanding the absence of provision for compensation.


2.  The implications for the right to property and possessions of people wishing to hunt on other people's land under contractual arrangements with them.

  (b)  Please would you inform the Committee of your reasons for concluding that Option 2 is compatible with Article 1 of Protocol No 1, in the light of the absence of any provision for compensation for loss of a contractual right to hunt on another person's land.

  24.  The Government agrees that in some circumstances contractual rights may be held to constitute a "Possession" for the purposes of Article 1 of Protocol 1.

  25.  Again, however, the Government is satisfied that insofar as there is any interference with a person's use and enjoyment of such a possession, the regulation of hunting through the licensing system provided for in Schedule 2 to the Bill as introduced in the House of Commons involves a control of use of that possession rather than the deprivation of it.

  26.  The Government emphasises that there are numerous occasions on which new legislation necessarily interferes with existing contractual rights without the individuals affected being compensated. In the present case, the issue of hunting with dogs has been the subject of debate for many years. Holders of contractual hunting rights have long been aware of the prospect that hunting with dogs might be stopped completely—numerous Private Member's Bills providing for a ban on hunting have been supported by an overwhelming majority of MP's in the House of Commons. In any event, the regulation of hunting under Schedule 2 will allow all forms of hunting with dogs to continue, some forms under licence, others unrestricted.

  27.  If Schedule 2 is enacted, a decision will have been taken by Parliament to introduce regulation of hunting through a licensing system, following a detailed inquiry (by the Burns Committee), much public debate and detailed consideration in Parliament itself.

  28.  While the Government accepts that Article 1 of Protocol 1 imports a requirement to pay compensation in most cases involving deprivation of property, it is satisfied that there is no similar requirement in relation to measures constituting a control of the use of property.

  29.  As explained at paragraphs 36 to 43 below, the Government considers that the interference with the peaceful enjoyment of possessions which is inherent in the prohibition on hunting provided for in Schedule 3 is justifiable in striking a fair balance between the rights of the individual and the general interest of the community, notwithstanding the absence of provision for compensation in that Schedule. It follows that the Government considers that any interference with contractual rights which is inherent in the licensing system provided for in Schedule 2 is also justifiable notwithstanding the absence of provision for compensation.

3.  Powers of Inspection

  (c)  Please would you inform the Committee of your reasons for being satisfied that the power of inspection would be compatible with ECHR Article 8, in the absence of more detail in the Bill about the extent of and conditions for the exercise of, the powers of inspection of the Hunting Authority.

  30.  The powers of inspection of the Hunting Authority are set out in paragraph 36 of Schedule 2 to the Bill as introduced in the House of Commons. These powers are limited to hunting activities, hare coursing events, and animals, equipment or premises used in connection with such activities or events. Thus inspections will be directed at hunt premises and land, and not at dwellings. Insofar as inspections of hunting activities and hare coursing events are carried out, the Government considers that Article 8.1 is not engaged in the pursuit of such activities. 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.

  31.  If Article 8.1 is engaged in relation to the Authority's powers of inspection, the Government is satisfied that any interference can be justified under Article 8.2.

  32.  Although the requirement that any interference must be "in accordance with the law" is interpreted by the European Court of Human Rights as requiring that the law is clear and accessible, it is also recognised that "whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances."[7] The Government accepts that the powers of inspection provided for import a degree of discretion to the Authority. However, the Government is satisfied that this discretion is not inconsistent with the requirement of clarity and accessibility in circumstances where excessive rigidity is inappropriate.

  33.  The purpose of the powers of inspection is, in the case of a licence holder, to enable the Hunting Authority to check compliance with codes of conduct and licence conditions, and in the case of an applicant for a licence, as part of the assessment of their suitability to hold a licence and their competence in the activity for which they wish to be licensed. The powers of inspection are an important part of the Authority's monitoring and enforcement function. In the Government's view, the nature of hunting activities and the purpose of the powers of inspection do not lend themselves to laying down more precisely the times at which, or the circumstances in which, such inspections should take place. The Government considers that, apart from the constraints contained in paragraph 36 of Schedule 2 itself (which limits the powers to hunting activities, hare coursing events, and animals, equipment or premises used in connection with such activities or events), it is appropriate for the manner of exercising the powers of inspection to be dealt with administratively, by means of training and guidance issued from time to time by the Authority to its inspectors.

  34.  The Authority (both itself and through persons appointed as inspectors), as a public authority, will be obliged under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with the Convention rights. Thus the powers of inspection will have to be conducted in a reasonable and proportionate manner.

  35.  In these circumstances the Government is satisfied that the powers of inspection are compatible with ECHR Article 8.

OPTION 3: PROHIBITION OF HUNTING

4.  Economic and property implications of losing the freedom to hunt

  (d)  Please would you inform the Committee of your reasons for being satisfied that a ban on hunting would meet the requirements of Article 1 of Protocol No 1, particularly in relation to (i) compensation and (ii) maintaining a fair balance between the interests of the landowner and the general or public interest. In relation to (ii), it would be helpful to know the factual or other considerations which were relevant, and particularly which may point to a greater interest in prohibiting hunting in the UK than in other European countries which take a different approach.

  36.  The Government is satisfied that a ban on hunting wild mammals with dogs as provided for in Schedule 3 to the Bill as introduced in the House of Commons would be compatible with Article 1 of Protocol 1 notwithstanding that there is no provision for the payment of compensation.

  37.  The Government accepts that a ban on hunting may be regarded as an interference with the peaceful enjoyment of a person's possessions, such as their land. However, no-one will be deprived of his or her possessions as a result of a ban on hunting; it is merely the use of their possessions which will be controlled. Owners will retain possession of their land, but will be restricted in its use. In this respect, the ban on hunting provided for in Schedule 3 is no different from other laws which regulate what can be done on both public and private property.

  38.  Certain forms of hunting with dogs are excepted from the prohibition on hunting. These exceptions are set out in Part II of Schedule 3. During Committee Stage of the Bill, there was support on all sides for widening the exceptions from the prohibition on hunting. The Committee may be aware that, as a result, certain amendments to Part II were tabled by the government, and accepted, at Report stage in the House of Commons. Therefore, in Part II as amended (and in Part II of the Schedule to the Bill as introduced in the House of Lords), activities which are excepted from the prohibition on hunting are:

    (i)  deer stalking;

    (ii)  rodent and rabbit hunting;

    (iii)  stalking and flushing out of foxes and hares for certain purposes;

    (iv)  retrieval of shot hares; and

    (v)  searching for escaped, diseased or seriously injured wild mammals.

  39.  Any landowner will therefore be able to conduct such activities notwithstanding the prohibition on hunting.

  40.  The Bill (and therefore the prohibition on hunting provided for in Schedule 3) relates only to hunting wild mammals with dogs. Other forms of hunting or pest control, such as shooting or trapping, will be unaffected. Similarly the shooting of gamebirds (and their retrieval using dogs) will be unaffected and people will be able to continue to use their land for other purposes such as drag hunting or other equestrian and non-equestrian activities.

  41.  As mentioned earlier, landowners have long been aware of the prospect of a ban on hunting with dogs, which has been the subject of public and Parliamentary debate for many years—and numerous Private Member's Bills providing for a ban on hunting have been supported by an overwhelming majority of MP's in the House of Commons. If this option is enacted, a decision will have been taken by Parliament to prohibit hunting (in preference to regulation or self-regulation) following a detailed inquiry (by the Burns Committee), much public debate, and detailed consideration in Parliament itself.

  42.  While the Government accepts that Article 1 of Protocol 1 imports a requirement to pay compensation in most cases involving deprivation of property, it is satisfied that there is no similar requirement in relation to measures constituting a control of the use of property.

  43.  In the circumstances outlined above, the Government considers that any interference with the peaceful enjoyment of possessions such as land which is inherent in the prohibition on hunting provided for in Schedule 3 is justifiable in striking a fair balance between the rights of the individual and the general interest of the community, notwithstanding the absence of provision for compensation.

  44.  The Committee has suggested that there is a greater interest in prohibiting hunting in the UK than other European countries. In fact, there is no uniform view across the countries of the Council of Europe as to whether hunting should be permitted, regulated or banned. A study on the international perspective was carried out for the Burns Inquiry. The study's findings are at Appendix 9 to the Burns Report of which a copy is attached. The Committee will note that:

    (i)  hunting with dogs is not practised or is largely banned in Spain, Belgium, Germany, Sweden, Denmark, Finland and Norway;

    (ii)  hunting is regulated in France, Portugal and Italy; and

    (iii)  hunting is subject to a system of self-regulation in Ireland, Scotland and (currently) England and Wales.

5.  Right to Respect for Private Life.

  (e)  Please would you (i) inform the Committee whether you consider that Article 8.1 is engaged, and (ii) if it is engaged, inform the Committee of the factual or other considerations which you consider to be relevant to the ability of a ban to meet the requirements of Article 8.2, particularly which may point to a greater interest in prohibiting hunting in the UK than in other European countries which take a different approach.

  45.  The Government considers that Article 8.1 is not engaged. 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.

  46.  Even if Article 8.1 is engaged, the Government is satisfied that a prohibition on hunting can be justified under Article 8.2 as being in accordance with the law and necessary in a democratic society for the protection of morals.

  47.  The Government considers that Schedule 3 to the Bill is sufficiently clear and accessible so as to meet the requirement that the interference is "in accordance with the law".

  48.  If Parliament enacts a ban on hunting, it would put an end to practices which Parliament considers to be at variance with the concept of morals in this country.

  49.  In determining what is "necessary in a democratic society" for the protection of morals, the European Court of Human Rights allows Member States a wide margin of appreciation. As mentioned above, there is no uniform view across the Council of Europe as to whether hunting should be permitted, regulated or banned. Thus, hunting with dogs is not practised or is largely banned in Spain, Belgium, Germany, Sweden, Denmark, Finland and Norway, it is regulated in France, Portugal and Italy, and it is subject to a system of self-regulation in Ireland, Scotland and (currently) England and Wales.

  50.  While the concept of margin of appreciation does not apply as such to domestic courts, the Government is satisfied that this is a case in which the courts would be likely to afford Parliament a discretionary area of judgement. If Schedule 3 is enacted, the imposition of a ban in England and Wales will have been determined by Parliament following an extensive Inquiry by the Burns Committee, much public debate, and a thorough consideration of the issues in Parliament itself.

  51.  Finally, the Government considers that the terms of the prohibition as set out in Schedule 3 are proportionate in that there are a number of exceptions to the prohibition (set out in Part II of Schedule 3) which are designed to meet the concerns of landowners, farmers and gamekeepers in relation to pest control and wildlife management.

6.  Representations

  52.  The Committee asked what representations the Home Secretary has received in connection with the Bill in relation to human rights issues and to what specific points these representations were directed.

  53.  The Home Secretary is aware of the representations made to the Burns Committee by Deadline 2000 (who support a ban on hunting) and the Countryside Alliance. These are summarised at 10.5 to 10.17 of the Burns Report (copy attached).

  54.  Deadline 2000 submitted that a ban on hunting broadly in the terms of Schedule 3 was fully compatible with the ECHR. The Countryside Alliance submitted that a ban would be incompatible with the ECHR. Their representations were mainly directed towards the compatibility of a ban with Article 8 and with Article 1 of Protocol 1. The Burns Committee did not express an opinion on whether any ECHR challenge would succeed.

  55.  The chairman of the Countryside Alliance has suggested in correspondence to the Home Secretary that a Bill containing a ban option would not be compatible with the ECHR. His comments were in general terms, they were not directed at any of the Convention rights specifically.

8 March 2001


4   eg Buckley v United Kingdom (1996) 23 EHRR 101. Back

5   eg R (on the application of Mahmood) v Secretary of State for the Home Department [2000] All ER(D) 2191; R (on the application of N) v Governor of HMP Dartmoor (16 February 2001). Back

6   RC v UK-decision of the former European Commission of Human Rights (1 July 1998). Back

7   Sunday Times v UK (1979) 2 EHRR 245. Back


 
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