Joint Committee On Human Rights Seventeenth Report

Government Bills

Bills drawn to the special attention of each House

1 Hunting Bill
Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

3 December 2002

10 July 2003

House of Lords 95

3rd & 7th

Background: earlier versions of the Bill and the Committee's earlier consideration of them

1.1 This is a Government Bill, published with explanatory notes.[5] It carries a statement of compatibility made by Lord Whitty under section 19(1)(a) of the Human Rights Act 1998. The Bill was originally introduced to the House of Commons. In its original form, it would have:

a)  prohibited hare coursing;

b)  prohibited the hunting of stags with dogs;

c)  prohibited the hunting of other wild mammals with dogs, unless the hunting was either (i) registered in accordance with clauses 2 and 8, or (ii) exempt in accordance with clause 3;

d)  put in place a registration system for the purposes registered hunting; and

e)  made transitional provision for the period when the new arrangements were being put into effect.

It would also have been an offence knowingly to permit ones own land to be used for the unlawful hunting of wild mammals, including stags, with dogs.

1.2 We initially considered the Bill and published our initial reflections in our Third Report. In response to a letter from the Chair seeking the Government's views, the Committee received a memorandum attached to a letter from Mr Alun Michael MP, the Minister for Rural Affairs and Urban Quality of Life, dated 31 January 2003. We considered the Bill's implications in respect of: the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1 to the ECHR, hereafter P1/1); the right to respect for private life (Article 8 of the ECHR); the right to respect for the home (Article 8 of the ECHR); and the right to be free from discrimination (Article 14 of the ECHR taken together with other Articles).

1.3 After examining the decision of the European Court of Human Rights in Chassagnou v. France,[6] we concluded that the control of unregulated hunting is a legitimate aim for the purposes of P1/1.[7] In the light of 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[8] (hereafter Adams) we concluded that Parliament could legitimately decide that the provisions of the Bill generally struck a fair balance between the public interest and the rights of those whom the Bill would affect. That being so, there was no significant risk of a violation of P1/1.

1.4 However, we raised with the Government a question about the human rights implications of the Bill in relation 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 have entirely deprived the economic beneficiary of the benefit of the contract. We asked why the Government considered that the lack of any provision for compensation was justifiable in relation to the right to the peaceful enjoyment of possessions under P1/1. In due course, we reported that in our view the requirements of P1/1 were likely to be satisfied in view of the fact that, among other considerations, the Bill originally introduced a registration system rather than a ban, and made provision for transitional arrangements.[9]

1.5 We also considered the Bill in relation to the right to respect for private life. We took the view that the Bill might engage the right to respect for private life if hunting with dogs 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. This was in the context of a less than total prohibition on hunting with dogs.

1.6 The Government considered that the Bill raised issues under ECHR Article 14 (prohibition of discrimination), but that the differences in treatment of different classes of hunting with dogs do not come within the scope of Article 14 because 'they are not based on a personal characteristic and can be justified objectively'.[10] We prefer to say that in our view the provisions do not amount to a difference in treatment falling with Article 14, because they do not give rise to discrimination on the ground of any characteristic or status personal to the hunters. For the same reason, we did not consider that the Bill engaged the free-standing right to be free of discrimination under ICCPR Article 26.

1.7 Overall, in our Seventh Report, we concluded that, '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'.[11]

1.8 During the course of its passage through the House of Commons, the Bill was significantly amended. The effect of the amendments was to remove from the Bill a proposed regime for registering certain hunting with dogs where it could be shown that hunting with dogs was the most humane way of controlling the numbers of the mammals in question, and also to remove the transitional provisions.

The Bill as introduced to the House of Lords

1.9 The Bill as introduced to the House of Lords would have prohibited all hunting of wild mammals with dogs (clause 1) unless it falls in a class of 'exempt hunting' (clause 2 and Schedule 1), which could be amended by the Secretary of State by a statutory instrument subject to the 'super-affirmative' procedure (clauses 2 and 14). The classes of exempt hunting were:

1.10 The Bill would have created criminal offences capable of being committed by individuals or bodies corporate, and would have allowed the arrest of a person on reasonable suspicion of having committed one of them (clauses 1-7 and 10). Following conviction, the court would have been able to order forfeiture of dogs or hunting articles used in the commission of the offence or in the possession of the accused at the time of his arrest, but a third party with an interest in a dog, vehicle or article would have been able to apply to the court to have it returned to him or her (clause 9). There would have been powers to search people and vehicles for evidence of an offence or for articles liable to forfeiture (clause 8).

1.11 The Bill did not complete its Committee Stage in the House of Lords. When it became clear, on 28 October 2003, that the Bill would not complete all its stages, we had not yet reported on it in the form in which it was introduced to that House. Nevertheless, as we had already devoted a significant amount of attention to the Bill and a similar Bill in some form is likely to be reintroduced at some stage, we take this opportunity to report our considered views of the human rights implications of the Bill as introduced to the House of Lords.

Relevant differences between the Bills introduced to the House of Commons and the House of Lords

1.12 The Bill as introduced to the House of Lords was relevantly different from that introduced to the House of Commons in two ways. First, the Bill introduced to the House of Lords would have imposed a total ban (with very limited exemptions) on all hunting of wild mammals with dogs, rather than a system of registration which would have allowed the circumstances of each hunt to be taken into account. Secondly, it contained no transitional provisions. We therefore asked the Government a number of questions about their reasons for continuing to think that the Bill as introduced to the House of Lords was compatible with Convention rights. The questions were set out in a letter from our Chair to the Minister for Food, Farming and Sustainable Energy (Lord Whitty) on 29 October 2003. He replied in a letter of 6 November 2003, enclosing a memorandum (hereafter 'the Government's Memorandum') setting out the Government's response. The correspondence is appended to this Report.

The effect on property rights

1.12 The Government still takes the view that a total prohibition on hunting with dogs amounts only to a control over property rather than a deprivation of it, in respect of both the physical possessions used in hunting (dogs, horses etc.) and the benefit of contracts related to hunting. In our view, the Government is correct in relation to physical possessions related to hunting. However, we find it hard to accept that depriving someone of the benefit of vested rights under a concluded contract can be described as anything other than a deprivation of those rights, which in our view are property for the purposes of P1/1.

1.13 The Government refers to two admissibility decisions, one made by the European Commission of Human Rights in a case concerning the loss of a de-boning business in the wake of restrictions introduced to combat BSE[12] and the other by a panel of the European Court of Human Rights in a case concerning loss of business following the banning of hand-guns.[13] In each case, the Government says, the Commission and the Court proceeded on the basis that there had been a control on possessions rather than a deprivation of property.[14] However, we do not consider those cases to be relevant, for two reasons. First, the decisions make it clear that the complaint in each case was about loss of the value of a business, and particularly about the diminution in the value of goodwill, whereas our concern is over the value of vested rights under concluded contracts. Secondly, in each of those cases the Government had made available compensation or financial support, and the complaint was that it did not provide enough compensation or compensation to enough people. By contrast, the Hunting Bill provided for no compensation scheme whatever.

1.14 In paragraph 10 of its memorandum, the Government reiterates its view, which had also been expressed in earlier correspondence with us, that parties to hunting-related contracts—

… 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. 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 … In [the Slough and King case mentioned earlier] the [European Court of Human Rights] 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.

1.15 We note that there is no history of progressive legislative restriction of hunting with dogs over a long period. Even if a person could lose the legitimate expectation that he or she would be able to enjoy the benefit of contracts by virtue of an announcement by a Government with a majority in the House of Commons that it intends to legislate in a particular way (and we express no view on that), we do not consider that the Government gave any such notice. A legitimate expectation cannot be lost merely because the Government is consulting on possible future legislation. The Government's first Bill on this subject offered three options for Parliament to choose between. Only one of these would have involved a total ban on hunting wild mammals with dogs. The present Bill, when the Government first introduced it to the House of Commons, did not propose a total ban. In any case, there can be no certainty that a Bill will be passed, particularly on a matter as controversial as hunting with dogs. While the introduction of a Government Bill could have been anticipated, nobody could have been sure what it would contain. Depending on the terms of such a Bill when it reached the House of Lords, it was also possible that its enactment would require the use of the Parliament Acts, and there was no certainty that the Government would be prepared to do this. We are therefore not satisfied that the Government has publicly advanced such a clear policy of banning the hunting of wild mammals with dogs that people should lose the legitimate expectation that their contracts will be effective and enforceable.

1.16 We take the view that the Bill as introduced to the House of Lords, so far as it would have made unlawful the performance of contracts already entered into, would have been likely to deprive the parties to the contracts of the benefit of them. We consider that this would have been likely to constitute a deprivation of property, that is the benefit of vested rights under those contracts. As a general principle, compensation for such a deprivation is required under P1/1 unless there is the strongest justification for not providing it.

1.17 In relation to the restriction on the use of dogs and other physical assets for hunting wild mammals, we accept that the Bill would have constituted a control on the use of possessions rather than a deprivation of property. The Government argues that it is compatible with P1/1 to refuse compensation for such a control on use.[15] But we note that it does not follow automatically that no compensation is required by P1/1. 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.[16] The Government accepts this, but relies on one of the cases mentioned earlier as authority for the proposition that there is no right to compensation for a control on the use of property.[17] We accept that the Government is entitled to take this view, but the question is one of balance. We note once again that the dispute in the case which the Government cites concerned the extent of a compensation or financial support scheme rather than the existence of one.

1.18 Another relevant factor when assessing the fairness of the balance is the justification for the interference. In order to strike a fair balance between competing rights and interests, the interference with rights must go no further than necessary for the legitimate purpose pursued. The Bill as introduced to the House of Lords included a number of exemptions from the ban on hunting wild animals with dogs: see paragraph 1.9 above. These exemptions prompted us to ask for an explanation of the rationale for them, and for the remaining areas of absolute prohibition. The Government has justified these controls and the exemptions by reference to protecting the welfare of wild mammals. We consider that this is an adequate explanation of the rationale for the exemptions.

1.19 Nevertheless, we draw to the attention of each House our view of the human rights implications of the absence from the Bill of any compensation scheme, particularly in relation to the deprivation of the benefit of vested rights under contracts already entered into (see paragraph 1.16 and 1.17 above).

Respect for private life

1.20 The Government considers that hunting with dogs does not engage the right to respect for private life under ECHR Article 8.1, because its nature is essentially public and it falls outside the meanings given to 'private life' by the European Court of Human Rights. The Government refers to the decision of the Court of Session in Adams, the more recent decision in Petition of Whaley and Friend for the judicial review of the Protection of Wild Mammals (Scotland) Act 2002, P672/02, judgment of 20 June 2003, and decisions of the European Commission and Court of Human Rights. In any case, the Government considers that the Bill's interference with the activities would have been justifiable under ECHR Article 8.2 as being in accordance with the law and, like other animal welfare legislation, necessary in a democratic society for the protection of morals.[18]

1.21 We do not wish to express any concluded view as to whether hunting on one's own land would be regarded as falling outside the realm of 'private life' for the purpose of ECHR Article 8.1. On the other hand, like the Government, we are satisfied that the interference with that right would be likely to be regarded as justifiable under ECHR Article 8.2.

5   HL Bill 95-EN Back

6   Judgment of 29 April 1999, 29 EHRR 615. Back

7   See particularly paragraph 108 of the Courts Judgment, and note also paragraph 105 of the decision of the European Commission of Human Rights in the same case Back

8   Judgment of 31 July 2002. Back

9   See Seventh Report, para 19. Back

10   HL Bill 95-EN, paras. 67, 69. Back

11   HL Paper 74, HC 547, para. 23. Back

12   Pinnacle Meat Processors Co. v. United Kingdom, App. No. 33298/96 Back

13   Slough and King v. United Kingdom, Apps. Nos. 37679/97 and 37682/97 Back

14   See paras. 8 and 9 of the Government's Memorandum Back

15   See paras. 8, 9 and 10 of the Government's Memorandum Back

16   See particularly Chassagnou v. France, (1999) 29 EHRR 615, Eur. Ct. H.R., at § 82 of the judgment, and, in non-hunting contexts, Immobiliari Saffi v. Italy (1999) 30 EHRR 756 at § 57 and Marcic v. Thames Water Utilities Ltd [2002] 2 WLR 932, CA, at para. 116 of the judgment Back

17   See para. 15 of the Government's Memorandum, citing Pinnacle Meat Processors Co. v. United Kingdom, App. No. 33298/96 Back

18   See paras. 19-21 of the Government's Memorandum Back

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