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Arrangement of Clauses (Contents)
These notes refer to the Hunting Bill
1. These explanatory notes relate to the Hunting Bill as brought from the House of Commons on 28th February 2001. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform the debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The issue of hunting with dogs has been the subject of much discussion and debate over recent years. It is an issue on which the Government is neutral and which has never before now been the subject of a Government Bill. Although a number of Private Member's Bills relating to this issue have been introduced in Parliament, none of them has been enacted.
4. In December 1999 a Committee chaired by Lord Burns was appointed to carry out an Inquiry into Hunting with Dogs in England and Wales. The Report of the Committee was published in June 2000.1 The Committee was not asked to recommend whether hunting with dogs should be banned, or regulated, or whether the status quo should be preserved, but to provide an objective statement of the facts surrounding hunting. The Government now seeks, by means of this Bill, to resolve this issue.
1 Report of the Committee of Inquiry into Hunting with Dogs in England and Wales CM 4763
5. The Government remains neutral on the question of whether hunting with dogs should be banned, or regulated, or whether the status quo should be preserved. On publication of the Burns Report the Home Secretary announced that the Government would provide time for a Government Bill on Hunting, containing a series of legislative options on the merits of which
there should be free votes. The Government invited each of the three main interest groups to put forward an option reflecting their policy aims for incorporation within the Bill. The main interest groups are:
6. On introduction in the House of Commons on 7th December 2000, the Bill consisted of all three options. The House of Commons voted in favour of the option to ban hunting, and against the options for self-regulation through an independent supervisory body and the setting up of a statutory licensing authority. The Bill therefore contains a single option to ban hunting with dogs, except in a few limited circumstances, but the Government will table as amendments the two options that the House of Commons removed from the Bill, thereby enabling the House of Lords to have the same choice between options that was given to the House of Commons. The three options are self-contained and mutually exclusive.
The existing legislative framework
7. Although there is no body of legislation in England and Wales which is specifically concerned with hunting with dogs, hunting (with or without dogs) does appear in various pieces of legislation as an exception to certain prohibited acts. Therefore such legislation as there is permits hunting, albeit in some cases subject to some very limited restrictions on certain hunting practices.
8. The Game Act 1831 makes provision (sections 30 to 32) for the penalties and police powers to be applied to any persons trespassing on any land in pursuit of game. Section 35 of that Act provides that these provisions "shall not extend to any person hunting or coursing upon any lands with hounds or greyhounds, and being in fresh pursuit of any deer, hare, or fox already started upon any other land.."
9. Under the Game Licences Act 1860, a person must take out a licence to kill game before he uses any dog (or gun or net etc) for the purpose of taking, killing or pursuing any game (sections 2 and 4). However section 5 provides for exceptions in respect of the "pursuing and killing of hares respectively by coursing with greyhounds or by hunting with beagles or other hounds" and the "pursuing and killing of deer by hunting with hounds" (exceptions 3 and 4).
10. The Protection of Animals Act 1911 sets out in section 1(1) certain acts (beating, torturing, terrifying, causing or permitting any unnecessary suffering) which if carried out on any domestic or captive animal constitute an offence of cruelty. A domestic animal is a tame animal, while a captive animal is an animal held in a permanent state of captivity or confinement (section 15(c)). However by section 1(3)(b) of the 1911 Act the protection provided by section 1(1) does not apply "to the coursing or hunting of any captive animal" provided that the animal is not mistreated while in captivity, nor released for hunting in an injured, mutilated or exhausted state, and once released for hunting has a reasonable chance of escape.
11. By section 3 of the Protection of Badgers Act 1992 it is an offence to interfere with a badger sett by intentionally or recklessly damaging it, obstructing access to it, obstructing any entrance to it, or disturbing a badger occupying it. However there is a specific exception (set out at section 8(4) to 8(9)) which allows recognised hunts to obstruct any entrance of a badger sett "for the purpose of hunting foxes with hounds" provided certain conditions (relating to, for example, the materials to be used and the permissible duration of the obstruction) are met.
12. The Wild Mammals (Protection) Act 1996 makes it an offence to do certain things (such as mutilate, kick, or beat) to any wild mammal with intent to inflict unnecessary suffering (section 1). A wild mammal is defined (in section 3) as any mammal which is not a domestic or captive animal within the Protection of Animals Act 1911. There is an exception (section 2(b)) in respect of "the killing in a reasonably swift and humane manner of any such wild mammal . injured or taken in the course of. hunting [or] coursing ." and a further exception (section 2(d)) in respect of "any act. done by means of any. dog. lawfully used for the purpose of killing or taking any wild mammal".
13. The Bill, as introduced in the House of Commons, contained three mutually exclusive options which would:
14. These options broadly reflected the policies of the Countryside Alliance, the Middle Way Group and Deadline 2000, respectively.
15. The House of Commons voted for the option to ban hunting, and against the options for a voluntary system of self-regulation and a licensing regime. Therefore the Bill as introduced in the House of Lords contains a single option to ban hunting with dogs but the other two options will be tabled as amendments in order to give the House of Lords the opportunity to consider them (see paragraph 6 above).
16. It is the Government's intention that the provisions of the Bill should take effect one year after Royal Assent. If Parliament finally decides that the option that it favours is the licensing regime one, some transitional provisions would be necessary to enable people to apply for licences before the requirement to have a licence came into force.
17. These notes provide a commentary on the Bill in its current form which is followed, for the sake of completeness, by a commentary on the two options which were removed by the House of Commons.
COMMENTARY ON CLAUSES
Clause 1: Hunting with dogs: prohibition
18. Clause 1 introduces the Schedule, which prohibits hunting with dogs except in limited circumstances.
COMMENTARY ON THE SCHEDULE
Schedule : Hunting with dogs: Prohibition
Part I: Prohibition
19. The Schedule makes it an offence to hunt wild mammals with dogs except in certain limited circumstances which are specified in the Schedule.
20. Paragraphs 1, 2, 3 and 4 of the Schedule set out the different hunting offences. An offence may be committed :-
21. Under paragraph 5 a person found guilty of an offence under paragraph 1, 2, 3 or 4, is liable on conviction in a magistrates' court to a fine not exceeding level 5 on the standard scale (currently £5,000).
22. Paragraph 6 provides that where an offence has been committed by a corporate body under paragraphs 2, 3 or 4, with the consent or connivance of an officer of the body corporate who was in a position to give the company's permission for the use of land or dogs, that person as well as the body corporate is guilty of an offence.
Part II: Exceptions
23. The primary offence of hunting with dogs created by paragraph 1 is subject to a number of limited exceptions. These are set out in paragraphs 7, 8, 10, 11, 12, 13 and 14. These exceptions relate to the stalking and flushing out of a fox, hare or deer; the control of rodents; hunting a rabbit; the retrieval of shot hare; locating a wild mammal which has escaped or been released from captivity; and searching for a wild mammal which is or might be diseased or seriously injured.
24. Under paragraph 7 it is a defence for a person charged with hunting with dogs to prove that his conduct related to the stalking, or flushing from cover, of a fox or hare and that four conditions were also met.
25. The first condition is that the stalking or flushing out was for the purpose of protecting livestock, fowl, game birds or crops, for the purpose of providing meat for animal or human consumption, or for the purpose of enabling a bird of prey to hunt the animal after it was found or flushed out.
26. The second condition is that the stalking or flushing out did not take place below ground.
27. The third condition is that reasonable steps were taken to ensure that once the animal was found or flushed out it was shot dead, for which purpose the dogs must have been kept under sufficiently close control to ensure that their actions could not prevent this objective being met (though this condition does not apply to stalking or flushing out carried out for the purposes of falconry).
28. The fourth condition is that the person stalking or flushing out was the owner of the land where the activity was taking place or was acting with his permission (but see paragraph 32).
29. Under paragraph 8 it is a defence for a person charged with hunting with dogs to prove that his conduct related to the stalking, or flushing from cover, of a deer and that two conditions were also met.
30. The first condition is that reasonable steps were taken to ensure that once the deer was found or flushed out it was shot dead, for which purpose the dogs must have been kept under sufficiently close control to ensure that their actions could not prevent this objective being met.
31. The second condition is that the person stalking or flushing out was the owner of the land where the activity was taking place or was acting with his permission (but see paragraph 32).
32. Under paragraph 9 a person is not guilty of an offence of hunting with dogs if the sole reason why he is not entitled to a defence under paragraphs 7 or 8 is that he was not given permission to use land at a particular time, and he reasonably believed at that time that the permission would have been given if he had sought it.
33. Under paragraph 10 it is a defence for a person charged with hunting with dogs to prove that his conduct consisted of rodent control.
34. Under paragraph 11 it is a defence for a person charged with hunting with dogs to prove that his conduct consisted of hunting a rabbit.
35. Under paragraph 12 it is a defence for a person charged with hunting with dogs to prove that his conduct was for the purpose of retrieving a hare which had been shot.
36. Under paragraph 13 it is a defence for a person charged with hunting with dogs to prove that he was searching for a wild mammal which had escaped, or been released, from captivity and that three conditions were also met.
37. The first condition is that the dogs were not used below ground.
38. The second condition is that reasonable steps were taken to ensure that once the wild mammal was found it was recaptured or shot dead for which purpose the dogs must have been kept under sufficiently close control to ensure that their actions could not prevent this objective being met.
39. The third condition is that the wild mammal had not been released or allowed to escape for the purpose of being hunted.
40. Under paragraph 14 it is a defence for a person charged with hunting with dogs to prove that he was searching for a wild mammal which he believed was or might have been diseased or seriously injured and that three conditions were also met.
41. The first condition is that dogs were not used below ground.
42. The second condition is that the purpose of the search was to relieve the wild mammal's suffering or to treat its disease.
43. The third condition is that reasonable steps were taken to ensure that once the wild mammal was found any suffering was relieved or disease was treated, for which purpose the dogs must have been kept under sufficiently close control to ensure that their actions could not prevent this objective being met.
44. In relation to each of the exceptions, it is the intention of the person who seeks to rely on the exception, and not the intention of the dog, which are relevant. A person who uses his dog in the context of one of the exceptions will not be guilty of an offence if his dog has other ideas and acts outside the scope of the exception.
45. Under paragraph 15 it is a defence for a person charged with hunting with dogs to prove that his behaviour comprised solely of activities to which a defence is available under paragraphs 7, 8 and 10 to 14.
46. Paragraph 16 allows the Secretary of State to amend, add or remove exceptions in relation to an offence under paragraph 1 by way of statutory instrument, which must be laid in draft before, and approved by, both Houses of Parliament.
PART III: Enforcement
47. Paragraph 17 gives a police constable the power to arrest without warrant a person whom he reasonably suspects had committed, is committing or is about to commit specified offences. These offences are where a person hunts a wild mammal with a dog, acts as an official in a hare coursing event, or where a person enters, controls or handles a dog in the course of, or for the purpose of, a hare coursing event and the dog participates in the event.
48. Paragraphs 18, 19 and 20 give a police constable powers of search and seizure where he reasonably believes that a person is committing one of the offences contained in paragraph 1, 2, 3 or 4 of the Schedule, and that evidence of the offence is likely to be found on the suspect or in a vehicle, or animal, or other item in the suspect's possession. In these circumstances the constable may stop and search a suspect or, as the case may be, his vehicle, animal or other thing. A constable has power of seizure of a vehicle, animal or other thing where he believes that it is likely to be used as evidence or that the court may order its forfeiture. A constable can enter all premises (other than a private dwelling) for the purpose of exercising these search and seizure powers. All of these powers may be exercised without a warrant.
49. Where a person has been convicted of an offence under paragraph 1, 2, 3 or 4, paragraph 21 gives the court power to make an order for the forfeiture of any dog or any hunting article which was either used to commit the offence or was in the convicted person's possession when he was arrested. A hunting article must have been designed or adapted for use in hunting. The forfeiture order may include provisions relating to the treatment of the dog or article in question, and may require the person who has possession of a dog or article to surrender it to the police, who must ensure that arrangements are made either for its destruction or disposal, as specified in the order, or if no arrangements are specified, would have to make whatever for its destruction or disposal as they consider to be appropriate. A person claiming to be the owner of a forfeited dog or article, who is not the convicted person, can apply to the court for the return of the dog or article.
50. Paragraph 22 concerns the power of the courts to make an order prohibiting a person convicted of an offence under paragraph 1, 3 or 4(2) from owning or being in control of a dog of a specified kind for a specified period, which could be for the rest of the person's life. The offences in question are where a person hunts a wild mammal with a dog, or where the owner, or person in charge or control, of a dog knowingly permits another person to use it to hunt a wild mammal, or where a person enters, knowingly permits a dog to be entered, or controls or handles a dog in the course of, or for the purpose of, a hare coursing event and the dog participates in the event.
51. A person who contravenes a prohibition order is liable to a fine not exceeding level 5 on the standard scale (currently £5,000). A person can apply to the magistrates' court one year after a prohibition order was made for the order to be terminated, and may be required by the court to meet the costs of hearing the application.
Part IV: General
52. Paragraphs 23-26 define a number of expressions which appear in
the Schedule. Paragraph 23 defines "wild mammal". The definition
includes a wild mammal which has been bred or tamed for the purpose
of being hunted or for any other purpose; a wild mammal which is in
captivity or confinement; a wild mammal which has escaped or been released
from captivity or confinement; and any mammal which is living wild.
53. Paragraph 24 provides that the term "hunts a wild mammal
with a dog" includes in particular a person who engages or participates
in the pursuit of a wild mammal and one or more dogs are used in the
pursuit. It is not necessary for the person to have used the dog or
dogs himself or for them to be under his control.
54. Under paragraph 25 land belongs to a person if he owns an interest in it; manages or controls it; or occupies it.
55. Under paragraph 26 a dog belongs to a person if he owns
it; or is in charge of it; or has control of it.
56. Paragraphs 27-31 deal with consequential amendments. Paragraph 27 amends section 35 of the Game Act 1831. Section 35 currently provides that various provisions of the 1831 Act which relate to penalties on trespassers and persons found on any land, shall not apply to a person hunting or coursing on any land with hounds or greyhounds in pursuit of deer, hares or foxes. Since hunting and coursing with hounds and greyhounds would be an offence this exception would become unnecessary and is removed. The stalking and flushing out of deer will remain legal and will benefit from the exception.
57. Paragraph 28 amends section 5 of the Game Licences Act 1860. Section 5 currently provides for a number of exceptions and exemptions from the provisions of the 1860 Act and the duties to be paid for game licences. These include the hunting of deer and hares by dogs and hare coursing. Since hunting and coursing with dogs would be an offence these exceptions would become unnecessary and are removed. The stalking and flushing out of deer will remain legal and will benefit from the exception.
58. Paragraph 29 amends section 1(3)(b) of the Protection of Animals Act 1911. Section 1(1) of that Act creates an offence of treating an animal cruelly or causing an animal unnecessary suffering. Section 1(3) provides for a number of exceptions including for the coursing of a captive animal. Since coursing would be an offence this exception would become unnecessary and is removed.
59. Paragraph 30 amends section 8 of the Protection of Badgers Act 1992. Section 3 of the 1992 Act currently makes it an offence to interfere with badger setts. Section 8(4) provides an exception to the offence by allowing for the obstruction of a badger sett entrance for the purpose of hunting foxes with hounds provided certain conditions are met. Since hunting with dogs would be an offence this exception would become unnecessary and is removed.
60. Paragraph 31 amends section 2(b) of the Wild Mammals Protection Act 1996. Section 1 of the 1996 Act makes it an offence to carry out certain acts on a wild mammal. Section 2(b) provides an exception from these offences in relation to coursing. Since coursing would be an offence this exception would become unnecessary and is removed.
COMMENTARY ON THE TWO OPTIONS WHICH WERE REMOVED BY THE HOUSE OF COMMONS
Hunting with dogs: Supervision
61. The option is intended to encourage (but not require) more of those who hunt to do so under the auspices of the existing self regulatory framework provided by the Independent Supervisory Authority for Hunting.
62. Hunting a wild mammal with a dog would be "supervised" either if it was conducted by a hunt which was a member of a supervised body or was registered with a supervised body - paragraph 64 below explains what is meant by a supervised body - or if it was conducted by an individual who was a member of a supervised body or was registered with a supervised body.
63. Hare coursing would be "supervised" if it formed part of an event arranged by a supervised body or by a body which was a member of a supervised body or was registered with a supervised body. Hare coursing which took place outside of an organised hare coursing event could still be supervised (since it would fall within the definition of hunting - see paragraph 73 below).
64. An organisation would be a "supervised body" if it was a member of The Independent Supervisory Authority for Hunting, known as ISAH Limited (see paragraphs 75 to 82 below). If ISAH Limited either ceased to exist or the statements of objects in its memorandum were changed, the Secretary of State would have the power to make an order designating a successor body and making consequential amendments to the option to reflect the constitution of the new body.
65. The option would be self-regulatory and voluntary, so that it would be permissible to participate in hunting with dogs or hare coursing without being a member of, or registering with, a supervised body. However the option is designed to provide an incentive to those who wish to hunt to engage in supervised hunting.
66. Two statutory exceptions would apply only to hunting with dogs or hare coursing which was supervised, and to certain other activities. These activities would be:
67. The first statutory exception would be section 1(3)(b) of the Protection of Animals Act 1911. Section 1 of that Act creates an offence of treating an animal cruelly or causing an animal unnecessary suffering. Section 1(3)(b) provides an exemption in respect of the coursing and hunting of captive animals.
68. The second statutory exception would be section 2(b) of the Wild Mammals (Protection) Act 1996. Section 1 of the 1996 Act makes it an offence to do certain things (such as mutilate, kick or beat) to a wild mammal with intent to inflict unnecessary suffering. Section 2(b) provides an exception in respect of the killing in a reasonably swift and humane manner of any such wild mammal injured or taken in the course of lawful hunting or coursing.
69. The Secretary of State would be able to make grants or loan to ISAH out of money provided by Parliament.
70. Any report which the Secretary of State received from ISAH about its activities would be laid before Parliament.
71. A "hare coursing event" would be defined as a competition in which dogs are assessed as to speed or skill in hunting hares.
72. A "hunt" would be defined as a body of people who combine wholly or partly in order to hunt wild mammals with dogs.
73. "Hunting a wild mammal with a dog" would, in particular, be where a person engaged or participated in the pursuit of a wild mammal and one or more dogs were used in the pursuit. It would not be necessary for the person to have employed the dog or dogs or for them to be under his control.
74. "Wild mammal" would include a wild mammal which had been bred or tamed for the purpose of being hunted or for any other purpose; a wild mammal which was in captivity or confinement; a wild mammal which had escaped or been released from captivity or confinement; and any mammal which was living wild.
The Independent Supervisory Authority for Hunting
75. ISAH Limited was established on 30 December 1999. The current members of ISAH Limited are the chairman of the Authority, the chairman of the Countryside Alliance's Hunting Committee and the chairmen of the Hunting Associations. These are the Masters of Foxhounds Association, Central Committee of Fell Packs, Federation of Welsh Packs, Association of Masters of Harriers and Beagles, Masters of Basset Hounds Association, National Coursing Club, Association of Lurcher Clubs, Masters of Deer Hounds Association, Masters of Mink Hounds Association and National Working Terrier Federation.
76. ISAH Ltd is not a licensing body. It oversees the Member organisations' rules, codes of conduct and disciplinary procedures. It has powers to visit and inspect hunts and to impose disciplinary sanctions on hunts and clubs. The costs of ISAH Ltd are borne by the member organisations.
77. The principal objectives of ISAH Ltd are to:
78. The work of the Authority is carried out by seven Commissioners. These are the Chairman of the Authority, the Chairman of the Hunting Committee of the Countryside Alliance or his nominee and five further Commissioners who are appointed by an Appointments Panel.
79. The Commissioners will normally refer a proper complaint made to it to the appropriate Hunting Association for its investigation and action. The Commissioners have a duty to examine the outcome of all disciplinary investigations made by the Hunting Associations, and have the power to require the Association to impose additional sanctions if it considers that insufficient attention has been paid to the public interest, or is otherwise dissatisfied with the Association's decision.
80. The Commissioners can issue a public warning or censure to a member organisation, or suspend, or ban an individual of a member organisation from holding office.
81. Every member organisation requires, at the beginning of each season from everyone of its participant members, that is the hunts, a written statement undertaking to comply with all relevant rules, practices and codes of conduct which are in force, and agreeing to accept the final authority of the Commissioners.
82. At the end of each season each member organisation is required to provide a written report of the season's activities.
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