House of Lords - Explanatory Note
      
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Session 2003 - 04
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Hunting Bill


 

These notes refer to the Hunting Bill
as brought from the House of Commons on 16th September 2004 [HL Bill 112]

HUNTING BILL

     


     EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Hunting Bill as brought from the House of Commons on 16th September 2004. They have been prepared by the Department for Environment, Food and Rural Affairs 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.

SUMMARY

3.     The Bill prohibits all hunting of wild mammals with dogs, except where it is carried out in accordance with the conditions of an exemption, and all hare coursing events. The Bill is identical (except as regards the date in the short title provided for in clause 16) to the Hunting Bill brought from the House of Commons on 10th July 2003.

TERRITORIAL APPLICATION: WALES

4.     All provisions of the Bill apply to both England and Wales.

COMMENTARY ON CLAUSES

PART 1: OFFENCES

Clause 1: Hunting wild mammals with dogs

5.     Clause 1 makes it an offence for a person to hunt a wild mammal with a dog unless the hunting is exempt.

Clause 2: Exempt hunting

6.     Subsection (1) provides that the classes of hunting which are exempt from the offence in clause 1 are specified in Schedule 1. Subsection (2) confers a power on the Secretary of State to vary a class of exempt hunting by order, which under clause 14 may not be made unless a draft has been approved by a resolution of each House of Parliament.

Clause 3: Hunting: assistance

7.     Clause 3 makes it an offence for a person knowingly to permit land which belongs to him to be entered or used, or to permit a dog which belongs to him to be used, in the commission of an offence under clause 1.

Clause 4: Hunting: defence

8.     Clause 4 provides that it is a defence for a person charged with an offence under clause 1 to show that he reasonably believed that the hunting concerned was exempt under clause 2.

Clause 5: Hare coursing

9.     Clause 5 prohibits hare coursing events. Subsection (1) makes it an offence for a person to participate in, attend or knowingly facilitate a hare coursing event or to permit land which belongs to him to be used for a hare coursing event. Under subsection (2) when a dog participates in a hare coursing event an offence is committed by any person who enters the dog for the event, who permits the dog to be entered for the event or who controls or handles the dog in the course of or for the purposes of the event.

PART 2: ENFORCEMENT

Clause 6: Penalty

10.     A person found guilty of an offence under the Bill is liable on conviction in a magistrates' court to a fine not exceeding level 5 on the standard scale (currently £5,000).

Clause 7: Arrest

11.     Clause 7 authorises a constable to arrest without warrant a person who he reasonably suspects to have committed, to be committing or to be about to commit an offence of unlawful hunting (clause 1), participating in or attending a hare coursing event (clause 5(1)(a) and (b)) or entering, permitting to enter or controlling or handling a dog in a hare coursing event (clause 5(2)). A warrant will be required in cases where a person commits an offence of knowingly permitting land which belongs to him to be entered or used for unlawful hunting (clause 3(1)), knowingly permitting a dog which belongs to him to be used for unlawful hunting (clause 3(2)), knowingly facilitating a hare coursing event (clause 5(1)(c)) or permitting land which belongs to him to be used for a hare coursing event (clause 5(1)(d)).

Clause 8: Search and seizure

12.     Clause 8 confers powers of search and seizure without a warrant where a constable reasonably suspects that a person is committing or has committed an offence under the Bill. Subsections (2) and (3) authorise the constable to stop and search that person and any vehicle, animal or other thing in his possession or control, while subsection (4) authorises the constable to seize and detain any vehicle, animal or other thing if he reasonably believes that it may be used as evidence in criminal proceedings for an offence under the Bill or may be subject to a forfeiture order under clause 9.

13.     Subsection (5) provides that for the purpose of exercising these powers of search and seizure a constable may enter land, premises other than a dwelling or a vehicle.

Clause 9: Forfeiture

14.     Subsections (1) and (2) give the court power to make an order for the forfeiture of any relevant dog, vehicle or hunting article against a person convicted of an offence under the Bill. "Hunting article" is defined in subsection (3). Subsections (4) to (6) make further provision in respect of forfeiture orders and the destruction, disposal or return of dogs, vehicles and hunting articles.

15.     Under subsection (7) a person commits an offence if he fails to comply with a forfeiture order or fails to co-operate with a step taken to give effect to a forfeiture order.

PART 3: GENERAL

Clause 11: Interpretation

16.     Clause 11 defines a number of expressions which appear in the Bill. Subsection (1) defines wild mammal, subsection (2) concerns what constitutes hunting a wild mammal with a dog, and subsections (3) and (4) set out the circumstances in which land or a dog belong to a person for the purposes of the Bill.

Clause 14: Subordinate legislation

17.     Clause 14 concerns the making of subordinate legislation. It provides that an order made by the Secretary of State under clause 2(2) of the Bill cannot be made unless a draft of the order has been laid before and approved by resolution of each House of Parliament.

Clause 15: Commencement

18.     Clause 15 provides that the Bill shall come into force three months after it receives Royal Assent.

SCHEDULES

Schedule 1: Exempt hunting

19.     Schedule 1 sets out the classes of hunting with dogs which are exempt under clause 2 from the offence in clause 1 if carried out in accordance with specified conditions. These exemptions are as follows.

Stalking and flushing out

20.     Paragraph 1 provides that dogs may be used to stalk or flush out a wild mammal if five conditions are satisfied. This provision should be read with paragraph 2, which sets out the conditions under which a dog may be used below ground to stalk or flush out a wild mammal.

21.     The first condition in sub-paragraph (2) sets out three possible purposes for which stalking and flushing out may be carried out:

    - preventing or reducing serious damage which the wild mammal would otherwise cause to livestock; game birds or wild birds; food for livestock; crops; growing timber; fisheries; other property; or the biological diversity of an area;

    - obtaining meat to be used for the purposes of human or animal consumption; or

    - participation in a field trial in which dogs are assessed for their likely usefulness in connection with shooting.

22.     In sub-paragraph (2)(a)(ii) game birds and wild birds are defined by reference to section 27 of the Wildlife and Countryside Act 1981. This provides that ""game bird" means any pheasant, partridge, grouse (or moor game), black (or heath) game or ptarmigan" and ""wild bird" means any bird which is ordinarily resident in or is a visitor to Great Britain in a wild state but does not include poultry or. .. any game bird".

23.     In sub-paragraph (2)(a)(viii) the biological diversity of an area is defined by reference to the United Nations Environmental Programme Convention on Biological Diversity of 1992. Article 2 of that Convention provides that ""biological diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems".

24.     The second condition in sub-paragraph (4) requires the stalking or flushing out to take place on land which belongs to the person doing the stalking or flushing out or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.

25.     The third condition in sub-paragraph (5) is that only up to two dogs may be used in the stalking or flushing out.

26.     The fourth condition in sub-paragraph (6) is that the stalking or flushing out must not involve the use of a dog below ground unless the requirements of paragraph 2 are complied with.

27.     The fifth condition in sub-paragraph (7) is that reasonable steps are taken to ensure that as soon as possible after being found or flushed out the wild mammal is shot dead by a competent person. Each dog used must be kept under sufficiently close control to ensure that it does not prevent or obstruct this.

Use of dogs below ground to protect birds for shooting

28.     Paragraph 2 sets out the limited circumstances in which a dog may be used below ground to stalk or flush out a wild mammal without the commission of an offence under clause 1. This provision should be read with paragraph 1.

29.     The first condition in sub-paragraph (2) is that the stalking or flushing out is undertaken for the purpose of preventing or reducing serious damage to game birds or wild birds which are being kept or preserved for shooting. Game birds and wild birds are defined by reference to section 27 of the Wildlife and Countryside Act 1981 (see paragraph 22 above).

30.     The second condition in sub-paragraph (3) requires the person doing the stalking or flushing out to carry written evidence either that the relevant land belongs to him or that he has been given permission to use it for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs. This evidence must be shown to a police constable immediately on request.

31.     The third condition in sub-paragraph (4) is that only one dog is used below ground at any time to stalk or flush out a wild mammal.

32.     The fourth condition in sub-paragraph (5) requires that:

    - reasonable steps are taken to ensure that as soon as possible after being found the wild mammal is flushed out from below ground;

    - reasonable steps are taken to ensure that as soon as possible after being flushed out from below ground the wild mammal is shot dead by a competent person;

    - the dog used is brought under sufficiently close control to ensure that it does not prevent or obstruct the shooting of the wild mammal;

    - reasonable steps are taken to prevent injury to the dog; and

    - the dog is used in compliance with any code of practice which is issued or approved by the Secretary of State for the purpose of this exemption.

These conditions replace those applicable under paragraph 1(7) to stalking and flushing out not involving the use of a dog below ground.

Rats

33.     Paragraph 3 permits dogs to be used to hunt rats on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.

Rabbits

34.     Paragraph 4 permits dogs to be used to hunt rabbits on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.

Retrieval of hares

35.     Paragraph 5 permits dogs to be used to retrieve a hare which has been shot on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.

Falconry

36.     Paragraph 6 permits dogs to be used to flush a wild mammal from cover to enable a bird of prey to hunt it, provided that the flushing out takes place on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.

Recapture of a wild mammal

37.     Paragraph 7 provides that dogs may be used to recapture a wild mammal which has escaped or been released from captivity or confinement if three conditions are satisfied.

38.     The first condition in sub-paragraph (2) is that the hunting takes place on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs, or with the authority of a constable.

39.     The second condition in sub-paragraph (3) is that reasonable steps are taken to ensure that as soon as possible after being found the wild mammal is recaptured or shot dead by a competent person. Each dog used must be kept under sufficiently close control to ensure that it does not prevent or obstruct this.

40.     The third condition in sub-paragraph (4) is that the wild mammal was not released or permitted to escape for the purpose of being hunted.

Rescue of a wild mammal

41.     Paragraph 8 provides that dogs may be used to rescue a wild mammal if seven conditions are satisfied.

42.     The first condition in sub-paragraph (2) is that the hunter reasonably believes that the wild mammal is or may be injured.

43.     The second condition in sub-paragraph (3) is that the hunting is undertaken for the purpose of relieving the wild mammal's suffering.

44.     The third condition in sub-paragraph (4) is that only up to two dogs may be used.

45.     The fourth condition in sub-paragraph (5) is that the hunting must not involve the use of a dog below ground.

46.     The fifth condition in sub-paragraph (6) is that the hunting takes place on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs, or with the authority of a constable.

47.     The sixth condition in sub-paragraph (7) is that reasonable steps are taken to ensure that as soon as possible after being found appropriate action is taken to relieve the wild mammal's suffering. Each dog used must be kept under sufficiently close control to ensure that it does not prevent or obstruct this.

48.     The seventh condition in sub-paragraph (8) is that the wild mammal was not harmed so that it could be hunted under this exemption.

Research and observation

49.     Paragraph 9 provides that dogs may be used to track a wild mammal if five conditions are satisfied.

50.     The first condition in sub-paragraph (2) is that the hunting is undertaken for the purpose of or in connection with the observation or study of the wild mammal.

51.     The second condition in sub-paragraph (3) is that is that only up to two dogs may be used.

52.     The third condition in sub-paragraph (4) is that the hunting must not involve the use of a dog below ground.

53.     The fourth condition in sub-paragraph (5) is that the hunting takes place on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.

54.     The fifth condition in sub-paragraph (6) is that each dog is kept under sufficiently close control to ensure that it does not injure the wild mammal.

Schedule 2: Consequential amendments

55.     Paragraph 1 amends section 35 of the Game Act 1831. Section 35 currently provides that various provisions of that 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. The amendment removes this exception.

56.     Paragraph 2 amends section 5 of the Game Licences Act 1860. Section 5 currently provides for a number of exceptions from the provisions of that Act and the duties to be paid for game licences. These include exceptions concerning the hunting of deer and hares by dogs and hare coursing, which the amendment removes.

57.     Paragraph 3 relates to the interpretation of 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, but section 1(3)(b) provides for an exception for the hunting or coursing of a captive animal. This paragraph provides that this exception shall not apply in respect of participation in a hare coursing event or in the coursing or hunting of a wild mammal with a dog.

58.     Paragraph 4 amends section 8 of the Protection of Badgers Act 1992. Section 3 of that Act currently makes it an offence to interfere with badger setts. Section 8(4) to (9) 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. The amendment removes this exception.

59.     Paragraph 5 relates to the interpretation of section 2 of the Wild Mammals (Protection) Act 1996. Section 1 of that Act makes it an offence to do certain acts (such as mutilating, kicking and beating) to a wild mammal with intent to inflict unnecessary suffering. Section 2 provides exceptions from this offence in relation to certain acts. This paragraph provides that for the purpose of those exceptions the hunting of a wild mammal with a dog shall be treated as lawful only if it is exempt hunting within the meaning of clause 2 of the Bill.

60.     This amendment means that the only acts during exempt hunting which are excepted from the offence in section 1 of the Wild Mammals (Protection) Act 1996 are the attempted mercy killing or the killing in a reasonably swift and humane manner of a wild mammal injured or taken in the hunting, and acts done by dogs. No other acts involved in hunting with dogs or hare coursing will be excepted from the offence.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

61.     A ban on hunting with dogs would have implications for employment. There are four main categories of employment which depend on hunting. These are direct employment by the hunt; direct employment by hunt followers; indirect employment resulting from the supply of goods and services to hunts and hunt followers; and induced employment resulting from the salaries which are spent by both direct and indirect employees.

62.     The number of full time equivalent jobs dependent on hunting has been estimated to be somewhere between 6,000 and 8,000, but subsequent evidence suggests these figures are significantly overestimated.

63.     In terms of national aggregates, hunting as an economic activity is insignificant. However, a ban on hunting would affect some farmers; a number of businesses of different types supplying goods and services to hunts and hunt followers; point-to-point races; and National Hunt racing.

64.     A full RIA of the costs and benefits of the Bill is available to the public from the Department of the Environment, Food and Rural Affairs, Area 2A, Ergon House, Horseferry Road, London SW1P 2AL.

FINANCIAL AND PUBLIC SERVICE MANPOWER EFFECTS OF THE BILL

65.     The Bill will give rise to no new expenditure by a Minister of the Crown and will have no public service manpower effects. The resources required by the police for enforcing the requirements of the Bill will be part of the overall resources allocated to the police for law enforcement. The police have regard to the guidance of the Home Office in determining priorities.

EUROPEAN CONVENTION ON HUMAN RIGHTS

66.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament before Second Reading to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of the Act). The Minister of State for Rural Affairs and Local Environmental Quality has made the following statement:

    In my view the provisions of the Hunting Bill are compatible with the Convention rights.

67.     The Bill raises issues under Article 1 of Protocol 1 (Protection of property) and Article 14 (Prohibition of discrimination) of the Convention.

68.     The controls imposed by the Bill are capable for the purposes of Article 1 of Protocol 1 of constituting an interference with the peaceful enjoyment of possessions connected with hunting with dogs and hare coursing events (including associated economic benefits). In the Government's view this interference is justified under the second paragraph of the Article on the basis that it strikes a fair balance between the rights of the individual and the general interest of the community in the protection of animal welfare. It is considered that the controls do not amount to a deprivation of property but rather to a control of use and so do not give rise to an obligation to provide compensation to those affected.

69.     The Joint Committee on Human Rights drew particular attention in its Seventeenth Report of Session 2002-03 to the absence from the Hunting Bill 2003 of any compensation scheme in relation to the deprivation of the benefit of vested rights under contracts already entered into. However, the Government considers that contractual rights are only capable of constituting possessions for the purposes of Article 1 of Protocol 1 when a party has an enforceable claim under a contract, which will generally only be after the contract has been performed. The Bill does not interfere with such rights and so does not give rise to an obligation to compensate. Where the Bill prevents the performance of contracts the parties' continuing obligations to each other will be governed by the general principles of the law of frustration.

70.     The Government takes the view that the differences in treatment under the Bill of different classes of hunting with dogs and hare coursing events do not come within the scope of Article 14 because they are not based on a personal characteristic and can be objectively justified.

COMMENCEMENT

71.     Under clause 15 the Bill shall come into force three months after it receives Royal Assent.

 
 
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