CHAPTER 10

IMPLEMENTING A BAN

10.1     The Committee's terms of reference required us to consider "how any ban might be implemented".  We stressed in paragraph 1.4 that we had not been asked to consider whether hunting should be banned.  We also stressed that nothing in our report should be construed as indicating that we had formed any view on whether there should be a ban.

10.2     We need to enter two more caveats in this chapter.  The first is that we did not see it as our task to recommend how a ban should be implemented but, instead, to identify the main issues which we think would need to be considered by anyone contemplating legislation.  The second is that none of us has a legal background, although we have been assisted in considering these matters by Mr Michael Fordham, whom we appointed as our Counsel.

10.3     There are a number of aspects in considering how a ban might be implemented:

• its compatibility with the European Convention on Human Rights
• its scope and form
• the timetable for implementation
• how it might be enforced
• whether controls on other types of hunting might also be necessary or desirable in consequence in order to prevent unsatisfactory practices
• whether other measures might be required to manage the populations of the animals concerned
• whether steps might need to be taken to encourage other activities (in particular, drag or bloodhound hunting) to replace hunting with dogs or to preserve sporting, social or cultural activities associated with hunting
• whether any measures might be needed to deal with the financial, economic, employment or other consequences of a ban.

10.4     As part of our consideration of some of these matters we arranged a seminar, in preparation for which we asked the Countryside Alliance and Deadline 2000 to submit papers.  The seminar, which was also attended by a representative of the Association of Chief Police Officers, focused on the legal, rather than enforcement, issues involved in implementing a ban.  The papers, and the seminar discussion, have been helpful in enabling us to address the various matters which need to be considered.¹

Compatibility with the European Convention on Human Rights (ECHR)

10.5     A fundamental argument put to us by the Countryside Alliance was that a ban on hunting would be incompatible with the ECHR.  This matter was considered at some length in the papers prepared by the Countryside Alliance and Deadline 2000 and was also discussed fully at the seminar itself.  The papers helpfully included Opinions by distinguished Counsel on both sides.  Counsel's Opinion, relied on by Deadline 2000 specifically addressed a draft Bill which had been prepared, whilst Counsel for the Countryside Alliance had considered the matter in principle.

10.6     Counsel for the Countryside Alliance (Edward Fitzgerald QC) concluded that, in his opinion, there was "a serious argument that the proposed ban on hunting with dogs will violate both Article 1 of Protocol I and Article 8".  Counsel for IFAW (David Pannick QC, Richard Drabble QC and Rabinder Singh), relied on by Deadline 2000, concluded that, in their opinion, "a ban on hunting wild mammals with dogs would be compatible with the Convention".

10.7     The Convention rights will become part of national law from 2 October 2000, when the key provisions of the Human Rights Act 1998 come into force.  Under the Act the higher courts will be able to make a declaration of incompatibility with the Convention in relation to an Act passed by Parliament.

10.8     It was clear to the Committee from the submissions and Opinions on both sides that the main argument centred on two Articles in the Convention: Article 8, which deals with respect for private life, and Article 1 of Protocol I, which deals with the right to peaceful enjoyment of property.  (Although there has also been some discussion in this context of Articles 5 (right to liberty and security), 6 (right to a fair trial), 11 (freedom of assembly and association) and 14 (prohibition of discrimination), it does not appear that a strong case could be mounted for arguing that a Bill to ban hunting would infringe any of these articles.)

Article 8

10.9     Article 8 provides as follows:

"1.  Everyone has the right to respect for his private and family life, his home and correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

10.10   There are two main issues: whether hunting with dogs can be regarded as coming within the concept of "private life" and, if it does, whether interference is justified on the grounds set out in Article 8 (2).  On the first issue, both sides agree that "private life" may encompass certain aspects of social interaction with others.  But they disagree on whether a ban on hunting with dogs would constitute an interference with this right.  The Countryside Alliance contend that it is an activity which is strongly identified with the ethos of a local community.  They also point out that it takes place, at least in part, on private land.  Deadline 2000, on the other hand, argue that the nature of the activity, even when it takes place on private land, is essentially public in character.  The Fitzgerald Opinion concluded that a ban would "probably constitute an interference with Article 8 rights", albeit not "one of the more intimate or core aspects of private life".  The Pannick Opinion concluded that "we do not consider that hunting with dogs falls within the concept of private life at all".

10.11   If it were the case that private life is interfered with, the issue of a legitimate objective (i.e. the protection of morals) seemed to the Committee to be crucial.  That question seemed to the Committee to turn on two key factors: first, whether hunting with dogs is viewed as inherently or necessarily causing unnecessary suffering; second, whether, if it was so seen by members of the public or Parliament, this could constitute sufficient "moral" grounds in the absence of objective, scientific evidence.

10.12   Both sides agree that, if Article 8 (1) is engaged, the key tests are whether the interference has a legitimate basis (i.e. whether interference is necessary "for the protection of morals"), whether there is "a pressing social need" for the interference and whether it is proportionate.  In reaching a judgement on the former, the European Court of Human Rights would allow a State a "wide margin of appreciation" - on the basis that States are better able to judge what is appropriate in their particular circumstances.  Similarly, the domestic court would be likely, we understand, to afford Parliament "a discretionary area of judgement".  The Countryside Alliance argue, however, that it would not be sufficient simply to assert that hunting with dogs is immoral: there would need to be objective evidence that hunting involves unnecessary suffering, including by reference to that involved in other methods.  They also point out that this argument is particularly relevant to the draft Bill prepared by Deadline 2000 since the latter would penalise hunting per se, without any need to prove unnecessary suffering.  Deadline 2000, on the other hand, argue that the test would be met in the light of the fact that Parliament would have decided on a free vote, after an inquiry and much public debate, that hunting is morally wrong and cruel.  The question of a permissible approach to “moral” grounds was also addressed in supplementary representations: a closing submission by the Countryside Alliance and a further opinion for IFAW, relied on by Deadline 2000.²

10.13   The Countryside Alliance also argue that a ban would fail the "proportionality" test.  This is in the light of what they regard as the lack of firm scientific evidence in respect of unnecessary suffering and the impact that a ban would have on rural communities and people's lives and livelihoods.  Deadline 2000 argue, on the other hand, that their draft Bill meets the test since it does only what is necessary to achieve its purpose - to ban hunting with dogs - and because it contains suitable exceptions and limitations.

Article 1 of Protocol I

10.14   Article 1 of Protocol I provides as follows:

"Every natural or legal person is entitled to the peaceful 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."

10.15   Both sides agree that Article 1 of Protocol I is engaged, in the sense that a ban on hunting, though it would not actually deprive someone of the use of land or the animals involved, would constitute a control on their use (according to Deadline 2000) or an interference with the substance of ownership (according to the Countryside Alliance).  The issue then turns on whether this is justified in accordance with "the general interest" and whether a fair balance is struck between the general public interest and the interference with the fundamental rights of individuals.

10.16   Both sides also agree that the "general interest" test is interpreted by the European Court with considerable latitude to national authorities.  The approach to which we were referred is to ask whether Parliament's judgement as to what was in the public interest is "manifestly without reasonable foundation".  The Countryside Alliance, however, question whether this "general interest" test is satisfactorily met.  They also argue that, even if the Court held that it was met, there is a strong likelihood that a "fair balance" would require economic compensation for owners of packs and for landowners.  Deadline 2000, on the other hand, argue that the Bill meets the "general interest" test since it is concerned with the protection of morals and the prevention of cruelty and that it is proportionate to these aims.  They also take the view that any losses to landowners would be speculative - other activities such as shooting and humane trapping would be unaffected - and that, in any event, no form of compensation scheme would be required.

10.17   Legislation to ban hunting might be open to challenge under Article 1 Protocol I (property rights) and, possibly, Article 8 (respect for private life) of the European Convention on Human Rights.  We are not qualified to express an opinion on whether any challenge along these lines would succeed.  Key questions would be whether the undoubted interference with property, and possibly with private life, was justified under Convention principles, bearing in mind the nature of the interference and the latitude enjoyed by the national authorities.  An important consideration would be whether legislators could point to unnecessary suffering or some other reference point beyond mere disapproval, to reflect the general interest (or, to the extent necessary, the protection of morals and pressing social need).  A relevant issue would be the form of the Bill: one which required proof of unnecessary suffering, or some similar test, would be less open to argument than one which banned hunting per se.

10.18   As our report shows, hunting with dogs of foxes, deer, hares and mink raises different issues according to the species involved and the way in which hunting takes place.  Hare coursing is different again.  Some previous attempts at legislation in this area have focused on one activity, for example foxhunting or hare coursing.  Others, for example the Bill introduced by Mr Michael Foster MP in 1997, have sought to implement a wider ban on hunting with dogs.  The draft Bill prepared by Deadline 2000, which we mentioned in paragraph 10.5, takes the latter approach, proposing a ban on the intentional hunting of a wild mammal with a dog.  As we note below, however, it also contains a number of exceptions in relation to certain activities involving certain species.  Anyone introducing legislation would therefore need to decide at the outset how broad the scope of the Bill should be, in particular to which species it should apply and which activities involving dogs it should cover.

Defining the offences

10.19   Any offences created need to be described sufficiently clearly so that those who might be affected by the legislation, and those who have to enforce it, know which activities constitute an offence and which do not.

10.20   There have been two broad approaches, in the context of Bills concerned with hunting, to formulating the main offence:

• defining as precisely and as exhaustively as possible the activities which are to be prohibited
• relying on a common understanding of what is meant by expressions such as 'hunting with dogs', backed up by any necessary exemptions or clarifications.

10.21   A main difficulty with the first approach is that the result may be to exclude inadvertently acts which the legislation was intended to cover.  A main difficulty with the second, broader approach is that it may simply not be clear enough what is intended to be caught, resulting in uncertainty all round.

10.22   The approach adopted in recent Bills has varied.  The Bill originally introduced by Mr Foster contained a definition of hunting but it was removed, at the Government's suggestion, during the Standing Committee consideration of the Bill in the House of Commons.  The Protection of Wild Mammals (Scotland) Bill, recently introduced in the Scottish Parliament, does not contain a definition.  Nor does the draft Bill which we mentioned in paragraph 10.5.  In their evidence to us, Deadline 2000 said that they favoured a simple offence of intentional hunting, coupled with any necessary exemptions, on the lines of the draft Bill.³  They also pointed out that the terms 'hunt' and 'hunting' already feature in existing legislation.  The Countryside Alliance, on the other hand, argued that the absence of a definition would be unsatisfactory, since it would lead to confusion and uncertainty.⁴

10.23   There have been different approaches too in respect of the mental element of the principal offence.  The Foster Bill, as originally introduced, penalised any person who "uses, causes or permits any dog to hunt any wild animal".  In the Bill as amended by the Standing Committee, the offence was simply couched in terms of hunting a wild animal with a dog.

10.24   In addition to the form of the main offences, consideration would also have to be given to the need for any secondary offences.  The Foster Bill included offences relating to owners and occupiers of land and owners and keepers of dogs.  The draft Bill also has an offence relating to the possession of instruments and appliances.

Exemptions

10.25   As we have noted, recent Bills have tended to be cast in terms of a prohibition on the hunting of wild mammals with dogs and that the terms "hunting" and "hunting with dogs" may sometimes have a broader meaning than the activities which we have examined.  The main areas in which the case for an exemption would need to be considered are in relation to:

• the hunting of any of the animals concerned for food
• the hunting of animals for the purposes of pest control
• the use of dogs for the purposes of locating or retrieving an animal which has been shot or otherwise injured.

A secondary issue has been whether the exemptions should be framed in respect of the use of a single dog only.

Powers of arrest, search, seizure and entry

10.26   All the recent Bills have contained provisions giving the police powers of arrest, search, seizure and entry.  The Countryside Alliance argued that these powers were disproportionate and criticised in particular the provision governing police powers of entry on or over land and buildings.⁵  Deadline 2000, on the other hand, pointed to similar provisions in the Wildlife and Countryside Act 1981.⁶

Geographical coverage

10.27   Another issue which would need to be addressed in preparing legislation would be whether it should apply equally to the whole of England and Wales or whether there would be any possibility of geographical variation.  As we acknowledged in Chapter 5, there is considerable local variation in the practice of hunting and in attitudes towards it.  Perhaps the strongest case, for some variation of this kind applies in respect of foxhunting in upland sheep-rearing areas where, as our report indicates, it would be difficult to use any other method to cull foxes.  One possibility, therefore, would be for the legislation to contain a provision which would permit hunting to take place in certain areas under some form of special authorisation.

10.28   Consideration should be given to whether any ban would be manifestly unjust, bearing in mind the activities caught and not caught by it.

10.29   Consideration should be given to whether any ban could be framed sufficiently clearly to enable people to regulate their conduct. A central issue would be whether a Bill would need to have a detailed definition of the prohibited offence and any exceptions or exemptions.

10.30   It would be necessary to consider the form of exceptions that should apply in particular areas, especially sheep-rearing upland areas, and for particular cases, such as the pursuit of injured deer or dealing with orphaned foxes underground or for research purposes.  It would be necessary to establish the number and type of dogs that should be permitted for this purpose.

10.31   Unless there was a good reason on objective grounds, we do not think it would be satisfactory to have different legislative provisions in force in different regions of the country.

10.32   In introducing legislation to ban hunting it would be necessary to decide how quickly it was intended to bring it into force.  There are three possible approaches.  The first would be to implement a ban quickly by means of an early specified date.  The second would be to defer implementation to a later specified date.  The third would be to include an order-making power allowing the Home Secretary to bring different provisions into force at different, unspecified dates.

10.33   Not surprisingly, those organisations and individuals who wish to see hunting banned have argued that there would be no need to delay implementation and that a ban should take effect as quickly as practicable once the relevant Bill has been passed.  Deadline 2000, in their evidence to us, said that the legislation "should come into force within a fixed, short period from the legislation receiving Royal Assent".  They went on to argue that, since the legislation which they were envisaging would not involve the need to establish new machinery or make secondary legislation, it should include a standard provision for commencement two months after Royal Assent.⁷

10.34   On the other hand, we received evidence suggesting that there would be advantage in having a longer period in which hunts and others could prepare for a ban. This could even take the form of a transitional period in which the number of days' hunting by the registered packs would reduce in stages.  The Countryside Alliance, though firmly maintaining their opposition to a ban, argued that, in the following areas, the impact could be lessened to a degree by phasing-in:

• disposing of hounds and horses, firearms and ammunition etc
• re-housing those who would lose their jobs and accommodation
• making new arrangements for the control of the quarry species
• preparing new legislation to promote animal welfare
• making alternative arrangements for the collection and disposal of fallen stock
• putting in place compensation arrangements.

10.35   It would be feasible to implement a ban quickly.  This would have the advantage of certainty, encouraging those concerned to get on as rapidly as possible with making any necessary adjustments.  There are stronger arguments for allowing a reasonable period of adjustment.  This would enable more time, for example, to reduce naturally the number of hounds; to develop draghunting and other activities; to put in place new population management strategies; and to mitigate wherever possible any social and economic consequences of a ban.

10.36   A strong objection to a delay in implementing a ban would be that, in the meantime, various practices which opponents of hunting view as particularly objectionable would be allowed to continue.  It might be possible to meet some of these objections by taking action in the meantime to ban or curtail some of these activities by considering the options discussed in Chapter 9.

How a ban might be enforced

10.37   In principle, the enforcement of legislation can be carried out by a number of different agencies, including the police, local councils or bodies, such as inspectorates, established specifically for the purpose.

10.38   The last two approaches seem to us to be more appropriate in the case of regulating or licensing an activity, rather than simply enforcing a prohibition.  Accordingly, we think that, in the case of a ban on hunting, the obvious course would be to look to the police to enforce the legislation in the normal way.

10.39   It was put to us by the Countryside Alliance and others that the police might face certain difficulties in enforcing a ban.  The main arguments advanced were that:

• the law would be strongly resented by many people, some of whom would not comply with it
• because the police are reluctant to enforce legislation where there is a lack of public support, they would not seek to give it a high priority
• police resources were, in any case, already heavily stretched, which would also encourage them to give enforcement a low priority
• the police would find it difficult to enforce a ban because many of the activities take place in fairly remote areas and, with the exception of hunting by the registered packs, many of the activities would not be very visible.⁸

10.40   We recognise that enforcing legislation of this kind would pose difficulties for the police and the prosecuting authorities.  We also recognise, however, that similar difficulties are experienced in other areas of the law.  It would be for Parliament to weigh up these arguments, amongst others, in considering whether a ban should be introduced and the form it should take.

10.41   Legislation implementing a ban might well pose some enforcement difficulties for the police.  These matters should be considered by Parliament when examining a Bill.

10.42   In considering the present impact of hunting with dogs, and of a ban on hunting, we have necessarily had to spend some time looking at other forms of control, in particular shooting.  We have not had an opportunity to consider these matters in great depth.  But we think that there are a number of possible improvements which might be considered, in the event of a ban on hunting.

Stalking/shooting

10.43   We noted in Chapters 5 and 6 the importance of stalking/shooting in the culling of red deer and the uncertainty about wounding rates.  We also noted that, in the event of a ban on hunting, there is a risk that a greater number of deer would be shot by less skilful shooters, leading to increased wounding rates.  We concluded that consideration should be given to requiring all stalkers to prove their competence by undertaking appropriate training.  Another issue which could usefully be considered is whether cull records should be kept.

Use of snares

10.44   We noted in Chapter 6 that even those snares that may be used legally to catch foxes raise considerable welfare concerns on a number of grounds.  We also noted that it seemed likely that, in the event of a ban on hunting, the use of snares, along with other lethal methods, would be likely to increase.  The use of snares was not part of our terms of reference, and we not been able to examine their use in any depth.  We conclude, nevertheless, that consideration should be given to the use of snares in general.

Closed seasons

10.45   We have already noted, in paragraph 9.33, that consideration might be given, in the absence of a ban, to introducing a closed season for culling hares and that it would be necessary to consider whether this should apply to shooting as well.

10.46   In the event of a ban on hunting, consideration should be given to the training of stalkers, the use of snares and the possible case for a closed season for culling hares.

10.47   A point that has struck us forcibly, in carrying out our review, is how difficult it has been to acquire reliable information about the population of foxes, deer, hares and mink and about the numbers killed.  More fundamentally, we note that, in contrast with the position in many other countries, there is no national, nor even a monitoring scheme for censussing their populations, as a basis for planning their management or conservation.  We are sure that it would be helpful if this could be remedied, not only for the mammals with which we are concerned but for other mammals as well.

10.48   As far as the quarry species are concerned, we have noted in Chapter 5 that a ban on hunting would make it necessary to re-think fundamentally the way in which the red deer population is managed in the Devon and Somerset area.  It would be important to develop some new system for collective management of the deer there.

10.49   Consideration should be given to the possibility of developing arrangements for monitoring and managing the populations of the four quarry species and other mammals.  A ban on hunting would make it necessary to review the existing arrangements for managing deer in the Devon and Somerset area in order to ensure that an effective strategic management system is in place.

10.50   We discussed at some length in Chapter 8 of our report the extent to which drag or bloodhound hunting might serve as a substitute for live quarry hunting in the event of a ban on the latter.  We concluded that fewer people would be likely to switch to these sports than has sometimes been suggested.

10.51   We do not think, however, that there is any specific action which central government should take in this area.  The extent to which one or other of these sports would be taken up would be determined, in the end, by how attractive people found them as a recreational activity, compared with other possible ways of spending their time and money.  Given the size of the horse-owning community, it would have every incentive to develop these and other equestrian activities.

10.52   We also noted in Chapter 4 that a ban on hunting might lead to some difficulties in respect of the organisation of point-to-point meetings, pony clubs and puppy shows.  The first of these activities is of some significance because of its links with National Hunt racing.  No doubt, in the event of the introduction of legislation to ban hunting, the various equestrian bodies, including the Jockey Club, would consider what action it would be necessary to take to ensure the future of point-to pointing and what contribution they and others could make to this objective.

10.53   In the event of a ban on hunting, there is no specific action which central government should take to promote other activities such as drag or bloodhound hunting.

10.54   We discussed in Chapter 3 the ways in which a ban on hunting might impact on individuals, businesses and local communities.

10.55   There are three main groups who would be affected financially by a ban on hunting:

• hunt employees
• the hunts
• farmers and other businesses⁹

10.56   In the case of those employees who would find themselves displaced from their jobs, there would probably no action which central government could do.  We think that, for the most part, there is probably no action which central government could take to address these matters since the effects would be very localised and would not, in general, be susceptible to action at a national level.  We would therefore expect that local authorities and others, in those areas most directly affected, would consider whether steps could be taken locally to mitigate the effects of a ban.  We have already noted, however, that there might be scope for some concerted effort to retrain people who would lose their jobs, possibly in the form of local job-creation schemes.

10.57   In the case of the hunts, the main issue which would arise would be whether some form of compensation should be paid in the event of their having to put down hounds and because the hounds would no longer be required.  We noted in Chapter 6 that there is disagreement about whether it would in fact be necessary for all, or even most, of the hounds to be destroyed and that this would depend on the speed in implementing a ban.  Leaving that question to one side, we understand that the principle which is generally applied, when considering issues of compensation, is whether the individual concerned is actually deprived of a particular benefit, rather than whether some limitations are placed on its use.  It would be a matter for the Government to consider, in the event of a ban and in the light of clearer guidance about its likely effects, whether any compensation should be paid in this particular case.

10.58   As far as farmers and other businesses are concerned, the main area in which central government action might need to be considered as in respect of the ‘fallen stock’ service presently provided by many hunts.  We discussed in paragraphs 3.57 to 3.61 the effects which a ban on hunting would be likely to have on this service and the fact that the ending of this service, in the event of a ban, might have significant impact on individual farmers.

10.59   As well as the disposal of farm animals, the loss of the hunt kennels’ fallen stock service would affect the disposal of equine carcasses.  The collapse in the trade in horse hair and hides, and the ban on the use of equine meat in commercial pet food, has made the disposal of equine carcasses more expensive, with current charges at a commercial incinerator of £300 or more.

10.60   In the event of a ban on hunting, consideration would need to be given to possible action in respect of the fallen stock service provided by many hunts and to whether there would be a case for compensation if hounds had to be destroyed and hunts had no further use for their kennels.

² These additional papers are also on the CD Rom.

³ Seminar, 10 April 2000, Session 3

⁴ CA paper for seminar

⁵ CA paper of 9 May 2000

⁶ Deadline 2000 paper for seminar, 24

⁷ Deadline 2000 paper for seminar, 29

⁸ CA, paper for the seminar, 1.32.1

⁹ We also received evidence from a chartered town planner (Mr Robin Bryer) suggesting  that hunt countries are, in effect, planning units and that, as most hunts meet more than 28 times a year, a new hunt would require planning permission.  Mr Bryer suggested that every hunt established prior to 1947 has deemed planning consent and a ban would amount to the revocation of planning permission for each and every hunt with compensation implications.  We have taken some advice on this issue and we are not persuaded that a hunt country is a separate planning unit. A hunt country will include many separate farms or agricultural units and a planning area is one which is physically and functionally one for the purpose of planning.  In addition, as meets are spread over many locations within a country, hunting is very unlikely to take place on the same site more than 28 times a year. Therefore, for a recreational activity of this nature, planning permission would not be required and there would be no compensation implications under planning legislation.

We welcome your comments on this site. Prepared 12 June 2000