Joint Committee On Human Rights Seventh Report

Hunting Bill

15. The Bill would—

  • prohibit hare coursing (clause 7);

  • prohibit the hunting of stags with dogs (clause 6);

  • prohibit the hunting of other wild mammals with dogs (clause 1) unless the hunting is either (a) registered in accordance with clauses 2 and 8, or (b) exempt in accordance with clause 3 (clause 1).

It would also be an offence knowingly to permit one's own land to be used for the unlawful hunting of wild mammals, including stags, with dogs (clause 4).

16. Following our initial consideration of the Bill, we were satisfied that the Government was largely entitled to take the view that the Bill as introduced to the House of Commons was compatible with human rights, taking account of the decision of the Outer House of the Court of Session holding legislation of the Scottish Parliament to ban hunting with dogs to be compatible with Convention rights and intra vires the Parliament under the Scotland Act 1998.[9]

17. However, we had one reservation. That concerned the effect of the Bill on 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 Article 1 of Protocol No. 1 to the ECHR ('P1/1'). In relation to the Hunting Bill introduced in the 2000-01 session, the Government had accepted 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, and that accordingly it was unnecessary to compensate people for loss of the benefit of hunting contracts in order to comply with P1/1.[10] Our Chair wrote on 21 January 2003 to Mr. Alun Michael M.P., the Minister for Rural Affairs and Urban Quality of Life, asking whether the Government still took that view, and, if so, why.[11]

18. The Government's response came in the form of an explanatory memorandum attached to a letter from the Minister, dated 31 January 2003.[12] It begins by setting out the two tests which would have to be satisfied for hunting wild mammals with dogs to be approved under the proposed registration system: (a) the hunting would have to be necessary to prevent serious damage to livestock, crops, other property or the bio-diversity of an area; and (b) it would have to be the method of controlling the damage, etc., causing least suffering to the hunted mammal.[13]

19. The Memorandum goes on to say that the Government remains of the view that the legislation would merely operate as a control on rights. It would not amount to a deprivation of the rights, even though the 'control' would result in the almost inevitable destruction of a person's ability to generate income from a previously legitimate business activity.[14] The Government relies particularly on decisions of the European Court of Human Rights holding that loss of all or part of a business as a result of controls on meat processing to combat BSE and controls on hand-guns after the Dunblane massacre led to a control on use rather than a deprivation.[15] It points out that the Bill would not necessarily frustrate all contracts for hunting wild mammals with dogs, because it would introduce a registration system rather than a ban, and clause 51 would provide for transitional arrangements giving time for parties to hunting contracts to re-negotiate their positions.[16]

20. On the current state of the Strasbourg case-law we accept that it is legitimate for the Government to take the position that the Bill would only restrict the use of possessions, rather than deprive people of them.

21. On that basis, the Government takes the view that refusing to pay compensation would be justified on two grounds—

  • there is no legitimate expectation that a previously lawful activity will continue to be lawful if there has been a legislative trend towards greater restrictions over a period (a view which would be persuasive even if the Bill were to be held to deprive people of property);

  • the state has a wide margin of appreciation when deciding whether to pay compensation in respect of an interference with possessions (an argument not applicable if the Bill were held to deprive people of property).[17]

22. We accept that these considerations mean that the Government is entitled to take the view that the Bill as introduced to the House of Commons would be likely to be compatible with P1/1.

23. 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.

9   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 Judgment of 31 July 2002, Lord Nimmo Smith (Outer House of the Court of Session). See Joint Committee on Human Rights, Third Report of 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 41/HC 375, pp 15-19, paras 28-43 Back

10   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

11   The letter was published as an appendix to our Third Report of 2002-03, Ev 5 Back

12   See below, Ev 5-7 Back

13   See para 3 of the Government's memorandum, Ev 5 Back

14   See paras 4-5 of the Government's memorandum, Ev 6 Back

15   Pinnacle Meat Processors Co. and 8 others v. United Kingdom, App. No. 33298/96, Eur. Commn. HR, admissibility decision of 21 October 1998 (inadmissible); John and Margaret Slough and A.J. and W. King and 10 others v. United Kingdom, Eur. Ct. HR, App. Nos. 37679/97 and 37682/97, admissibility decision of 26 September 2000 (inadmissible) Back

16   See paras 6-7 of the Government's memorandum, Ev 6 Back

17   See paras 8-9 of the Government's memorandum, Ev 6 Back

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