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
