Joint Committee On Human Rights Seventh Report

4.Memorandum from the Department for Environment, Food and Rural Affairs


1. This memorandum is submitted by the Department for Environment, Food and Rural Affairs in response to a request for comments on a point concerning the Hunting Bill in a letter from the Chair of the Joint Committee on Human Rights to the Minister for Rural Affairs of 21 January 2003. The Committee has indicated that, subject to this point, its provisional opinion is that the Hunting Bill is compatible with the relevant human rights obligations.

2. Before addressing the specific point raised by the Committee, it may be helpful to set out briefly the context in which the present Bill would have an effect on hunting.

3. In summary, the Bill would establish a registration system for most forms of hunting with dogs of wild mammals. To be registered, hunting would have to meet the two tests of utility and least suffering set out in clause 8. Hunting would have to be shown on a case-by-case basis to be necessary to prevent serious damage to livestock, crops, other property or the bio-diversity of an area, and also to be the method of preventing that damage which causes the least suffering to the wild mammals to be hunted. Hare coursing and deer hunting would be prohibited, as the Government can see no circumstances in which these activities could meet the two tests. The Government considers that it is right that cruelty to wild mammals should be prohibited.

4. The Government accepts that contractual rights are in some circumstances capable of constituting "possessions" for the purposes of Article I of Protocol 1 to the ECHR. However, it does not consider that compensation should be payable for any economic losses that may be suffered as a consequence of the Bill.

5. The Government holds the view it took in 2001 in relation to the earlier Hunting Bill that the current legislation would amount to an interference with the use and enjoyment of property rather than a deprivation of property. In the case of Pinnacle Meat Processors Company v UK (Application 33298/96), the claimants complained about the loss of their de-boning business in the wake of the restrictions brought in to combat BSE. The European Commission of Human Rights noted that the loss of business suffered by the applicants was more akin to a control of use rather than a deprivation of property. Accordingly, the Commission applied the "control of use" test. Similarly, in the case of Slough and King v UK Government (Application Nos. 37679/97 and 37682/97), the applicants also complained about the loss of part of their business (the sale of hand guns, banned post Dunblane), and the European Court of Human Rights applied the control of use test. The Government considers that the principles followed in these cases are equally applicable to possessions comprising land over which hunting takes place, the dogs used for hunting, and the economic benefits accruing from contracts connected with hunting.

6. To the extent that the Bill would impose a requirement for registration and not an absolute bar, performance of contracts relating to hunting would not necessarily become unlawful on the coming into force of the Bill. Furthermore, Schedule I to the Bill provides for categories of exempt hunting including stalking and flushing out. Extensive provision is made for transitional arrangements in clause 51. If an application for registration is made in the two months before the Bill comes fully into force (three months after enactment), the hunting concerned would be permitted to continue (subject to conditions) until the application has been determined by the registrar or, in the event of an appeal, by the independent Hunting Tribunal. This would give persons who are already parties to contracts for hunting additional time to renegotiate their obligations if they consider this appropriate in the light of the provisions of the Bill.

7. The Committee refers to paragraphs 28-29 and 42 of the memorandum submitted on 8 March 2001 by the Home Office on the previous Hunting Bill. These paragraphs, together with paragraphs 24-27, 36-41 and 43, set out the reasons why the Government considered that Article I of Protocol I did not require the payment of compensation for interference to a person's use and enjoyment of contractual rights in respect of that Bill. It was noted that there are numerous occasions where new legislation interferes with existing contractual rights without the individuals being compensated. The same principles apply to the current Bill. The contracting parties 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.

8. 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. This view is supported by the admissibility decision of the European Court of Human Rights in the Slough and King case. In that case, the Court 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.

9. This decision also confirms the wide margin of appreciation conferred on national authorities when determining whether compensation should be payable in respect of an interference with possessions. The Court made clear that national authorities must enjoy a wide margin of appreciation in determining not only the necessity of the measure of control concerned but also the types of loss resulting from the measure for which compensation will be made. The legislature's judgment in this connection should in principle be respected unless it is manifestly arbitrary or unreasonable.

10. The Committee has asked for a description of representations received in connection with the current Bill which relate to human rights issues, and the specific points to which such representations were directed. Such representations as have been received have been couched in general terms and many of them have included the suggestion that the continuation of traditional forms of hunting is or should be protected by the European Convention on Human Rights. There have also been references to the rights protected by the United Kingdom's international commitments under the Rio Declaration on Environment and Development 1992, in particular Principle 22 which refers to the role indigenous people and their communities in relation to environmental management and development. On the other hand many other representations have argued that there can be no right to be cruel.

31 January2003

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