Right to peaceful enjoyment of
possessions
31. A prohibition on using one's own dogs for hunting,
and a prohibition on permitting one's own land to be used for
hunting with dogs, would each restrict the way in which people
could use their own property, and engage the right to quiet enjoyment
of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter
P1/1). People who have already entered into contracts for provision
of hunting facilities would be likely to suffer loss if it became
impossible, through illegality, to perform the contracts. The
economic benefits of contracts are also possessions for the purposes
of P1/1. P1/1 provides—
Every natural or legal person is entitled to the
quiet enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law. The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as
it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or
other contributions or penalties.
32. In order to be justifiable under P1/1, the European
Court of Human Rights has held that an interference with property
rights must serve a legitimate public interest, and must strike
a fair balance between the public interest and the right affected.
Particularly strong reasons will be needed to justify a refusal
to compensate people for loss flowing from the interference. The
Court has accepted, in Chassagnou v. France,[21]
that the control of unregulated hunting is a legitimate aim for
the purposes of P1/1.[22]
The control of cruelty to animals, however that is assessed, has
also been accepted in Scotland as a legitimate aim of legislation
such as is contained in the current Bill.[23]
The question is whether the prohibitions and regulation contained
in the Bill strike a fair balance between the legitimate public
interest pursued and the rights of property owners. In this context
it must be borne in mind that no provision is made in the Bill
to compensate those who suffer loss as a result of its provisions.
33. The Bill affects several kinds of possessions
within the meaning of P1/1. The freedom to use one's property
for hunting would be affected. The right of people who make a
living from managing foxhounds for hunting purposes, or are otherwise
employed by hunts, to continue to do so is an economic interest
which has been held to fall within the protection of P1/1. This
is particularly clear where part of the emoluments is a tied house
for the use of a person who exercises those functions.[24]
Similar considerations have been held to apply to the hounds.[25]
In each of these cases, the Bill would constitute a control of
the use of property, and would engage P1/1. The question is whether
the Bill strikes a fair balance between the general interest and
the rights of those people. In addition, for reasons to be explained
below, the loss of profits which would otherwise have accrued
from existing contracts for hunting would, in our view, amount
to deprivation of property for the purposes of P1/1.
34. When replying to our predecessors' questions
about the earlier Hunting Bill in 2001, the Home Office (which
was responsible for that Bill) argued that nobody would have been
deprived of their possessions by the Bill. In relation to the
prohibition of hunting (the last of the three options presented
to Parliament that Bill), the provisions would merely have been
a restriction on the use to which people could put their possessions.
Furthermore, some hunting with dogs would have been allowed to
continue. There would have been a careful consideration of the
advantages and disadvantages of controlling hunting with dogs,
with a detailed inquiry by the Burns Committee and extended debate
in Parliament and in the country. Landowners, dog-owners and hunters
would have been well aware of the debate for some time. While
the Government accepted that there was normally a duty to compensate
for deprivation of possessions, it took the view that there was
no such requirement in relation to measures constituting only
a control of the use of property rather than a deprivation.[26]
Many other European countries controlled or entirely prohibited
hunting with dogs. In the light of those considerations, the Government
considered that the Bill struck a fair balance between the public
interest and the rights of those affected by it.[27]
35. Many of those considerations would apply equally
to the present Bill. In particular—
- clauses 1 and 5 of, and Schedule 1 to, the Bill
would allow dogs to be used for hunting wild mammals for a number
of purposes, including hunting of rats, rabbits, and shot hares,
use of dogs in falconry, and recapturing or rescuing wild mammals,
under certain conditions, on land which belongs to the hunter
or over which the hunter has been given permission to hunt, as
well as other specified circumstances;
- it would also be possible for a person to participate
in registered hunting under clauses 5 and 8 of the Bill, with
disputes being determined by a registrar, to be appointed under
clause 9, with an appeal to a Hunting Tribunal, to be established
under clause 10 and Schedule 2;
- it would still be possible for people to own
land and dogs previously used for hunting which would be prohibited
by the Bill, and to use them for purposes other than prohibited
hunting;
- in considering the present Bill, Parliament has
the advantage of even more debate than had taken place in 2000-01,
and the additional advantage of being able to consider the early
impact of the Protection of Wild Mammals (Scotland) Act 2002,
passed by the Scottish Parliament.
36. That being so, in our view it would be legitimate
for the Government to argue, and for each House to conclude if
it saw fit, that the provisions of the Bill as introduced by the
Government to the House of Commons generally strike a fair balance
between the public interest and the rights of those whom the Bill
would affect. This was the conclusion of Lord Nimmo Smith in Adams
in relation to broadly similar provisions in the Scottish legislation.[28]
Subject to one proviso (considered in the next paragraph), we
consider that the Bill as first introduced would be likely to
meet the requirements of P1/1 despite making no provision for
compensation to be paid to owners of land and dogs currently used
for hunting.
37. Our one reservation relates 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 entirely
deprive the economic beneficiary of the benefit of the contract.
This goes beyond a mere control or regulation of ownership. The
Government accepted in 2001 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.[29] We are at
present not persuaded by this. One should distinguish between
two different kinds of possessions—
(i) the land over which hunting takes
place and the dogs, etc., used when hunting; and
(ii) the economic benefit accruing from contracts
already entered into for hunting.
38. The Bill would, in our view, deprive people
of possessions of type (ii).[30]
Deprivation of possessions without compensation requires particularly
strong justification under P1/1. We have therefore asked the Department
what it considers the justification to be, and report the matter
to both Houses. Our concern applies only to contracts already
entered into for hunting in the future. In view of the publicity
surrounding the Bill, it might be easier to justify withholding
compensation for depriving people of the benefits of such contracts
entered into after the Bill was introduced to the House. However,
if the Bill were to be amended to extend the range of types of
prohibited conduct, for example by prohibiting all hunting with
dogs, without any forms of registered or exempt hunting, the lack
of any opportunity for contracting parties to gain the benefit
of their contracts would seem to strengthen the case for compensation
to be paid, at least to people whose contracts were for activities
which would not have been prohibited by the Bill as originally
introduced.
Right to respect for private
life
39. Hunting with dogs is essentially a public activity.
Although it may take place on private land, and may form an important
part of the participants' leisure activities and lifestyle, it
typically involves a large number of people operating over a large
area in the open, and often occurs partly on public highways,
footpaths or bridleways. In Adams, the petitioners argued
that a ban on hunting engaged the right to respect for private
life under ECHR Article 8. Lord Nimmo Smith rejected the claim,
holding that, while private life is more extensive than the idea
of privacy, there has to be something essentially personal or
private about it. After considering a number of decisions of the
Strasbourg Court about the nature of private life under Article
8, Lord Nimmo Smith said—
Foxhunting appears to me to have no characteristic
that would bring it within the concept of private life. It is
carried on in the open air. It involves a fairly large number
of participants. It is open to all comers and is thus inclusive
rather than exclusive. It may be carried on, principally at least,
on private land rather than on public roads, but it is private
land to which all who wish to participate are admitted for the
occasion. It constitutes a spectacle for them as well as for those
who use the public roads to follow the hunt. It is, I believe,
because of these features that counsel for the petitioners thought
it necessary to place so much emphasis on Dr. Marvin's discussion
of the social aspects of foxhunting. These very aspects appear
to me to emphasise the public rather than the private nature of
the activity, because its social consequences are so diffuse.
As it was put in Botta v. Italy,[31]
foxhunting gives rise to interpersonal relations of such broad
and indeterminate scope that it cannot be described as the private
life of its participants. It goes well beyond the 'certain degree'
contemplated in Niemietz v. Germany,[32]
and cannot be regarded as falling within the 'personal sphere'
recognised by the European Court of Human Rights.[33]
40. We consider that these comments would apply equally
in relation to the present Bill as first introduced to the House
of Commons. We therefore think that it would be legitimate for
the Government to argue that the Bill does not engage the right
to respect for private life.
41. The position might be different, however, if
amendments were introduced to prohibit other forms of hunting
with dogs in less public situations. Were that to happen, the
right might be engaged. It would then be necessary to decide whether
the interference with the right was justified under ECHR Article
8.2. We accept that it would be in accordance with the law, and
would serve the legitimate aim under Article 8.2 of limiting cruelty
to animals, which seems to us to constitute an aspect of protection
of morals, at least according to certain ethical codes. It would
then be necessary to establish whether the interference was necessary
in a democratic society for that purpose. This would involve asking
whether it is a response to a pressing social need, interferes
no further than necessary to achieve the legitimate objective,
and is proportionate to that objective. In Adams, Lord
Nimmo Smith would have answered these questions affirmatively,
taking account of the fact that the Scottish Parliament had concluded
that the method of killing foxes with dogs was cruel and less
efficient than other methods, while providing exceptions for those
other methods.[34] If
the Bill were to be amended in a way that engaged the right to
respect for private life, we would have to seek an explanation
of the reasons for thinking that the amended version of the Bill
was justifiable under Article 8.2. At present, the issue does
not arise.
17 HL Bill 10-EN Back
18
ibid., para. 81 Back
19
Joint Committee on Human Rights, Third Special Report of 2000-01,
Scrutiny of Bills, HL Paper 73, HC 448, Appendices 1 and
2, pp. vii-xix Back
20
Judgment of 31 July 2002, Lord Nimmo Smith (Outer House of the
Court of Session) Back
21
Judgment of 29 April 1999, 29 EHRR 615 Back
22
See particularly para. 108 of the Court's Judgment, and note
also para. 105 of the decision of the European Commission of Human
Rights in the same case Back
23
See Adams at para. 92 of the judgment of Lord Nimmo Smith,
relying on Tre Traktörer Aktiebolag v. Sweden (1989)
13 EHRR 309, Eur. Ct. H.R. Back
24
See Adams at para. 129 of the judgment Back
25
ibid Back
26
Support for this view may be found in the speech of Lord Hoffmann
in R. (Alconbury Developments and others) v. Secretary of State
for the Environment, Transport and the Regions [2001] UKHL
23, [2001] 2 WLR 1389, HL, at para. 72. Back
27
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. xii, paras. 36-44;
see also the extracts from Appendix 9 to the Burns Report, on
the position in other European countries, reproduced ibid. at
pp. xiv-xvii Back
28
See Adams at para. 130 of the judgment Back
29
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
30
Although pleaded, this issue was not argued by counsel or considered
in the judgment in Adams Back
31
(1998) 26 EHRR 2241, Eur. Ct. H.R. The case was concerned with
the freedom of a disabled person to have access to a beach when
on holiday. [Footnote added] Back
32
(1992) 16 EHRR 97, Eur. Ct. H.R. The case was concerned with
an extension of protection of Article 8 to the offices of lawyers
in order to protect clients' confidentiality. The Court held
that the concept of 'private life' had a certain degree of flexibility,
so that the protection of Article 8 could in appropriate circumstances
be asserted on business premises. [Footnote added] Back
33
Adams at para. 103 of the judgment Back
34
Adams at para. 104 of the judgment Back
