IN THE MATTER OF
THE HUNTING BILL AND
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
OPINION
I. Introduction
1. We are asked by the International Fund for Animal Welfare to advise
whether the Hunting Bill, as amended by the House of Commons and put
before the House of Lords in June 2003 as HL Bill 95 (‘the Bill’), is
compatible with the European Convention on Human Rights (‘the
Convention’). We are asked particularly to focus on Article 8, Article 11,
Article 14, and Article 1 of Protocol 1, as well as on the issues raised in the
seventeenth report of the Joint Committee on Human Rights.
2. 2. In summary, it is our opinion that the Bill – if passed into law – would be
compatible with the Convention. We consider that Articles 8 and 11 are not
applicable to this case and that any interference with rights falling within
their scope is in any event justified. We consider that Article 1 of Protocol 1
and Article 14 are likely to be applicable but, again, that any interferences
with the rights protected by those Articles are justified. We take the view
that Bill raises no significant issues under any other Articles of the
Convention.
The Bill
3. Clause 1 of the Bill provides that
A person commits an offence if he hunts a wild mammal with a dog,
unless his hunting is exempt.
1
Clause 4 provides that it is a defence for a person to show that he
reasonably believed that the hunting in question was exempt.
4. The exemptions are contained in Schedule 1 and include:

Paragraph 1 – Stalking a wild mammal or flushing it out of cover if
certain conditions are met. One such condition is that reasonable
steps are taken to ensure that the wild mammal is shot dead and
that the dogs used are controlled so that they do not obstruct this
objective (which seems to us broadly to mean that dogs may be
used to find and expose a wild mammal but reasonable steps must
be taken to ensure that they do not kill it or attack it).

Paragraphs 3 and 4 – Hunting rats and rabbits

Paragraphs 7 and 8 – Recapturing and rescuing wild mammals
(again, provided that reasonable steps are taken to ensure that the
dogs do not obstruct the objectives of recapture or the relief of
suffering)
5. It is also an offence, under clause 3, for a person to permit land or dogs
belonging to him to be used in the course of the commission of an offence
under clause 1.
6. Hare coursing (namely a competition in which dogs are, by the use of live
hares, assessed as to skill in hunting hares) and certain activities related
to it are made offences by clause 5. Where this opinion refers to hunting, it
should be taken as including hare coursing unless the context requires
otherwise.
Background
7. Bills proposing a ban or the formal regulation of hunting have been put
before Parliament on many occasions. Prior to 2000, each had been
introduced as a Private Member’s Bill. The Government first introduced a
Hunting Bill into the House of Commons on 7 December 2000, amidst
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considerable publicity. The Bill considered in this Opinion is the most
recent version, introduced to the House of Commons on 3 December
2002, as amended and sent to the House of Lords.
8. In December 1999, the Government appointed a committee, chaired by
Lord Burns, to hold an inquiry into hunting with dogs and the effect of a
ban. The Burns Report was completed on 9 June 2000. Its conclusions
included the following (paragraph references are to the Summary and
Conclusions section):
Population management

Most farmers, landowners and gamekeepers consider that fox
populations need to be managed. Most foxes are probably killed
by methods involving guns. In lowland areas, other means of
control could replace all hunting with dogs; in upland areas, it
would be difficult to avoid the use of dogs for flushing out to
guns or for digging out – paragraphs 34 and 35.

Hunting with dogs kills only about 15% of culled red deer –
paragraph 38.

There is no real need to cull hares; hare coursing is essentially
recreational – paragraph 40.

Hunting with dogs does not have any significant effect on the
mink population – paragraph 43.
Animal welfare

None of the legal methods of killing foxes is without difficulty
from a welfare perspective. However, hunting with dogs above
ground can lead to death from ‘massive injuries to the chest and
vital organs, although insensibility and death will normally follow
within seconds’. The Committee was ‘satisfied… that this
experience seriously compromises the welfare of the fox’. The
Committee’s ‘tentative conclusion’ was that lamping has fewer
adverse welfare implications, though it was less confident that
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the use of shotguns was necessarily preferable to hunting with
dogs – paragraphs 56-61.

Most scientists agree that deer are likely to suffer in the final
stages of hunting. Stalking is in principle the better method of
culling deer from an animal welfare perspective – paragraphs 51
and 52.

Being pursued, caught, and killed by dogs seriously
compromises the welfare of hares – paragraph 64.

There seems reason to suppose that the same applies to mink –
paragraph 67.
Employment

6,000-8,000 jobs depend to some degree on hunting, 700 of
which result from direct employment by hunts and 1,500-3,000
of which result from direct employment on hunting-related
activities. It is not possible to say how many jobs would be lost if
hunting were banned – paragraphs 18 and 19.
Other aspects of hunting

Hunting is a recreational activity. It also plays a part in social
and cultural life the loss of which would be keenly felt, though
this varies greatly from community to community – paragraphs
22 and 26.
9. In 2002, the Scottish Parliament passed the Protection of Wild Mammals
(Scotland) Act 2002, which is similar to the Bill. It has been challenged
twice in the Outer House of the Court of Session, in Trevor Adams and
others v Scottish Ministers [2003] SC 171 and Whaley and Friend v the
Lord Advocate (judgment of 20 June 2003). To a considerable degree,
these cases raise issues which coincide with those raised by our
instructions. In both cases, the court held that the prohibition on hunting
wild mammals with dogs did not violate the Convention.
10. In those cases, the petitioners averred the following facts, among others:
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
Hunting is a long-established activity in which people from many
different walks of life participate. It contributes to the social
cohesiveness of rural communities and is an intensely social
activity. It is partly a recreational activity and partly an effective
means of controlling fox populations – Adams, paragraphs 36,
37, 40, 41.

Hunting communities are ethnic communities. Banning hunting
can take away hunters’ lifestyles and remove their ‘primary
characteristic’. There is no automatic right to join a hunt: people
must apply and be admitted – Whaley, paragraph 22.
10. With regard to the compatibility of the 2002 Act with the Convention, in
Adams, the court held that:

Fox hunting with dogs does not fall within the scope of ‘private
life’ within the meaning of Article 8 (paragraphs 102-103) and
large estates of land are not part of the ‘home’ within the
meaning of Article 8 (paragraph 102)

However, the livelihood of a self-employed huntsman is a
‘possession’ which is ‘controlled’ by a ban within the meaning of
Article 1 of Protocol 1 (paragraph 129) and the Act treated
people differently by distinguishing between types of hunter,
which was a ground within the meaning of Article 14 (paragraph
136)

Taking into account the discretionary area of judgment accorded
to the Scottish Parliament, any interference with Convention
rights was nevertheless justified (e.g. paragraph 136).
11. In Whaley, the court held that:

Fox hunting has a public rather than private quality for the
purposes of Article 8 (paragraphs 64-65)
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
Huntsmen do not belong to a minority generally recognised as in
need of special protection; the pursuit of fox hunting as a
profession or as a recreation cannot be said to be integral to the
individual personality of every member of a hunt so as to
engage Article 8 (paragraph 69)

The prohibition on fox hunting does not impinge on thought,
religion, or belief within the meaning of Article 9 (paragraph 72)

Article 10 confers no entitlement to carry on fox hunting
(paragraph 77)

Article 11 is not engaged because the prohibition prevents a
particular activity rather than the assembling of a hunt
(paragraph 80)

Even if Articles 8-11 were engaged Parliament was within its
discretionary area of judgment in concluding that the prohibition
was necessary for the protection of morals (paragraph 87)

Engaging in mounted fox hunting does not confer a personal
characteristic or ‘status’ for the purposes of Article 14
(paragraph 96)
12. The seventeenth report of the Joint Committee on Human Rights has
raised a further issue. The Committee considered that the Bill was not
incompatible with Article 8 was potentially incompatible with Article 1 of
Protocol 1 because ‘the Bill… so far as it would have made unlawful the
performance of contracts already entered into, would have been likely to
deprive the parties to the contracts of the benefit of them… As a general
principle, compensation for such a deprivation is required under P1/1
[Article 1 of Protocol 1] unless there is the strongest justification for not
providing it’ (paragraph 1.16).
13. We agree with the Court of Session in Whaley that arguments under
Articles 9 and 10 are of virtually no merit, and so we propose to consider
Articles 8 and 11, Article 1 of Protocol 1, and Article 14. In doing so, it is
important to bear in mind that arguments under those Articles might be
made by individuals in a number of capacities, including (a) as recreational
6
hunters, (b) as landowners, (c) as owners of dogs and hunting equipment,
and (d) as professional, employed hunters.
II. Article 8
14. Article 8 provides that
1. Everyone has the right to respect for his private and family life,
his home and his 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.
Potential arguments against the Bill
15. In our view, the potential arguments under Article 8 are that the Bill,
without justification, would
(i) interfere with the right to respect for private life by preventing
hunters from hunting; and/or
(ii) interfere with the right to respect for the home by preventing
landowners from using their land or allowing their land to be
used for hunting.
16. It is our view that a ban on hunting with dogs interferes neither with
respect for private life nor with respect for the home and that, if there were
any such interference, it is justified.
Interference
7
Private life
17. Hunting is, in our view, an inherently public activity. The hunters
themselves describe it as highly social and a community interest. Even
when it takes place on private land, it generally involves large groups of
people and is in open view to anyone who happens to be passing. It is
difficult to see how it could be described as ‘private’.
18. We maintain this view despite the fact that ‘private life’ has been
interpreted generously by the European Court as covering, for example,
certain activities which take place in public. In PG & JH v United Kingdom
[2002] Crim LR 308, the European Court summarised the position at
paragraph 56:
‘Private life is a broad term not susceptible to exhaustive
definition. The Court has already held that elements such as
gender identification, name and sexual orientation and sexual
life are important elements of the personal sphere protected by
Article 8… Article 8 also protects a right to identity and personal
development, and the right to establish and develop
relationships with other human beings and the outside world… It
may include activities of a professional or business nature…
There is therefore a zone of interaction with others, even in a
public context, which may fall within the scope of “private life”.’
19. There are limits, however: in our view, there must be some clear private or
personal element to an activity to bring it within the definition. In PG, for
example, the applicant’s voices were recorded when being charged for an
offence and when in their police cell and later analysed. This did interfere
with their private life even though their conversations took place in not
wholly private circumstances, but this was because information personal to
them was thereby covertly obtained and stored. Moreover, the applicants
could properly expect that their conversations would be private and would
not be recorded and analysed. The same did not apply, for example, to
demonstrators whose photographs were taken in Friedl v Austria (1995)
21 EHRR 83: accordingly, this did not interfere with their private life. In our
8
view, the Bill does not impinge on huntsmen in any comparable fashion,
nor can they have any reasonable expectation to privacy when hunting.
20. Moreover, in our opinion, mere engagement with others cannot of itself
involve private life. Thus, in Botta v Italy (1998) 26 EHRR 241 the
European Court held that the right to obtain access to a beach concerned
‘interpersonal relations of such broad and indiscriminate scope’ that it
could not concern the applicant’s private life. To rely on the highly
communal aspects of hunting to bring it within the sphere of private life
seems to us to turn Article 8 on its head.
21. Nor can it sensibly be suggested that Article 8 in any sense engenders a
general right of liberty of action which does not have a specifically private
character, despite the comment in paragraph 61 of Pretty v United
Kingdom (2002) 35 EHRR 1 that ‘the notion of personal autonomy is an
important principle underlying the interpretation of [Article 8] guarantees’.
This cannot, in our view, be taken to mean that Article 8 confers a right to
conduct oneself as one pleases, as emphasised by the intensely personal
context of Pretty. The ability, by bringing about one’s own death, to put an
end to personal suffering and to prevent a humiliating death caused by
debilitating illness stands in stark contrast to the activity of hunting.
22. Finally, we do not think that huntsmen can rely on being a minority group
to bring their activity into the sphere of private life. It is true that in
Chapman v United Kingdom (2001) EHRR 18, as well as other cases, it
has been recognised that interfering in the lifestyle of minority groups
might engage Article 8. In Chapman, a Gypsy’s private life was held to be
in issue when she was refused planning permission to station her caravan
at a particular site. But this was because this was so integral to her
traditional, minority lifestyle that it impinged directly on her personal
identity and ‘her ability to lead her private life… within that tradition’
(paragraph 73; emphasis added). We do not think that hunters are a
minority group in the same sense: they themselves proclaim the wide and
varying backgrounds of those who participate in hunts. This is so whether
9
or not there is some application system for joining a hunt: that does not
make them an ethnic minority or other minority group by way of analogy
with Chapman. This is consistent with the Scottish court’s decision in
Whaley. Moreover, we do not consider that the activity of hunting can be
said to be sufficiently part of the identity of a person who engages in it to
form part of his private life.
Home
23. In our view, it is unlikely that a landowner can claim that the land he uses
for hunting is his home. The European Court seems to interpret ‘home’ as
a settled place where a person lives or at least has sufficient domiciliary
connections – see Niemietz v Germany (1993) 16 EHRR 97, at
paragraphs 30 and 31 (where the European Court went so far as to say
that a professional office could fall within the scope of ‘home’ in certain
circumstances). It does not seem to encompass all the land a person
happens to own, though, whatever his connections with it. In Loizidou v
Turkey (1996) 23 EHRR 513, for example, the Court held that ‘it would
strain the meaning of the notion “home” in Article 8 to extend it to comprise
property on which it is planned to build a house for residential purposes.
Nor can that term be interpreted to cover an area… where one has grown
up and where the family has its roots but where one no longer lives.’
24. We know of no case where the European Court has considered whether
land which adjoins a place of residence forms part of the ‘home’. In our
view, while a small, ‘lived-in’ garden might well do so, it is unlikely that land
which is vast and wild enough to sustain hunting with dogs forms part of
the ‘home’. This is supported by the view taken by the Scottish courts.
Justification
25. Even if it could be said that the Bill does interfere with the right to respect
for private life or the home, it is highly likely, in our view, that a court would
consider such an interference to be justified under paragraph 2 of Article 8.
10
26. In our view, any interference caused by the Bill would meet the first
requirement of being ‘in accordance with the law’. This means that it must
be accessible and formulated sufficiently precisely to allow individuals to
regulate their conduct (Sunday Times v United Kingdom (1979) 2 EHRR
245, paragraph 49). In our view, the Bill is clear and precise and meets
these criteria.
27. To be justified, an interference must also be necessary in a democratic
society in pursuit of a legitimate aim listed in the Article. In this regard, it
must correspond to a pressing social need, be proportionate to that need,
and be supported by relevant and sufficient reasons (Sunday Times,
paragraph 62).
28. Since this involves balancing the public interest against the rights of
individuals, the courts will allow Parliament a discretionary area of
judgment. This is a domestic law doctrine which is not the same as but is
similar to the Strasbourg doctrine of the ‘margin of appreciation’. This was
first recognised in Handyside v United Kingdom (1979-80) 1 EHRR 737, in
which the European Court said at paragraph 48:
‘By reason of their direct and continuous contact with the vital forces of
their countries, State authorities are in principle in a better position than
the international judge to give an opinion on the exact content of these
requirements as well as on the “necessity” of a “restriction” or “penalty”
intended to meet them… It is for the national authorities to make the
initial assessment of the reality of the pressing social need implied by
the notion of “necessity” in this context.’
29. Domestic courts have recognised that this reasoning does not apply in
quite the same way in the domestic context. However, similar principles do
apply in certain circumstances. Thus, in R v DPP, ex parte Kebilene [2000]
2 AC 326, at page 380:
‘Difficult choices may have to be made by the executive or the
legislature between the rights of the individual and the needs of
society. In some circumstances it will be appropriate for the courts to
11
recognise that there is an area of judgment within which the judiciary
will defer, on democratic grounds, to the considered opinion of the
elected body or person whose act or decision is said to be incompatible
with the Convention… It will be easier for such an area of judgment to
be recognised when the Convention itself requires a balance to be
struck, much less so where the right is stated in terms which are
unqualified. It will be easier for it to be recognised where the issues
involve questions of social or economic policy, much less so where the
rights are of high constitutional importance or are of a kind where the
courts are especially well placed to assess the need for protection.’
See also the comments of Lord Bingham, sitting in the Privy Council, at
page 703 of Brown v Stott [2003] 1 AC 681. Numerous similar comments
have been made since then at all levels of the domestic legal system: see
e.g. R (ProLife Alliance) v BBC [2003] 2 All ER 977, especially paras. 7477 (Lord Hoffmann) and 131-144 (Lord Walker).
30. In our view, it is highly likely that a court would recognise that the Bill
pursued a legitimate aim, namely ‘the protection of morals’. It seems to us
indisputable that the treatment of animals and the means taken to prevent
perceived cruelty to animals is a question of public morality. There is
ample evidence to support the view that hunting with dogs harms the
welfare of animals, not least the Burns Inquiry, summarised above. The
European Court has shown itself willing to accept the assertions of the
government as to the aim it is pursuing in the absence of clear evidence
that it was not acting in good faith (see, for example, Tre Traktorer
Aktiebolag v Sweden, (1991) 13 EHRR 309, paragraphs 56-58) and, as
recognised in Handyside, questions of public morals fall squarely within
the ‘discretionary area of judgment’. In this case in particular, hunting with
dogs is a matter of acute public controversy where deference to the
elected legislature is likely to be extensive. It may well be that, if the Bill is
enacted, those who oppose it will be able to persuade a future Parliament,
perhaps as a result of a change of government, to take a different view as
to what public morals require: that simply illustrates that this issue falls
within the essentially political arena, which in a democracy is to be
resolved by Parliament and not by the courts.
12
31. We also consider that the Bill is consistent with the requirements of
proportionality. Once it is accepted that the legitimate aim is to prevent
cruelty to wild animals by hunting and killing them with dogs, then there is
no real option but full prohibition. Statutory regulation would hardly be
adequate as, by definition, it would allow the offending activity to persist. In
our view, it lies well within the discretionary area of judgment for
Parliament to conclude that banning fox hunting corresponds
proportionately to a pressing social need and does so for relevant and
sufficient reasons.
III. Article 11
32. Article 11 provides:
1. Everyone has the right to freedom of peaceful assembly and to
freedom of association with others, including the right to form
and join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights
other than such as are prescribed by law and are necessary in a
democratic society… for the protection of… morals…
Potential arguments against the Bill
33. The argument would appear to be that the Bill violates Article 11 by
preventing hunters from gathering to hunt. It is clear that they are not
prevented from gathering for any other lawful reason.
Application
34. In our view, Article 11 is unlikely to be held applicable in this case.
35. Firstly, a hunt is not, in our opinion, an ‘association’ within the meaning of
Article 11. As the European Commission of Human Rights stated in Mark
Anderson v United Kingdom (1998) 25 EHRR CD 172, ‘freedom of
association… has been described as a right for individuals to associate “in
13
order to attain various ends”’ and not for merely “social” purposes. In our
view, the killing of foxes is not an ‘end’ contemplated by the Article; it is of
a wholly different nature from the objectives of the organisations which
Article 11 is generally held to cover, such as political parties, professional
bodies, and religious organisations.
36. Secondly, the right of peaceful assembly – and there is room to doubt
whether a hunt could properly be called ‘peaceful’ in any event – does not
provide a right ‘to assemble for purely social purposes’ (Anderson).
37. Thirdly, huntsmen are not prohibited from assembling or associating at all.
They are merely prohibited from conducting themselves in a particular
manner once they have done so: they may still ride together or take part in
a mock hunt, for example. As the European Court said at paragraph 38 of
National Union of Belgian Police v Belgium (1970) 1 EHRR 578, ‘the
Article does not guarantee any particular treatment’ even of trade unions,
which are listed as a ‘special aspect of freedom of association’.
38. However, it must be recognised that there is a possibility that Article 11
would be held to apply. At paragraph 102 of Chassagnou v France (1999)
29 EHRR 615, that the European Court held that Associations
communales de chasses agrees (bodies consisting of huntsmen and
landowners) were associations within the meaning of Article 11. However,
these bodies were set up by law for a particular purpose: ‘to encourage, on
their hunting grounds, an increase in game stock, the destruction of vermin
and the prevention of poaching, to instruct their members in how to hunt
without interfering with property rights or crops and in general to improve
the technical organisation of hunting so that the sport can be practised in a
more satisfactory manner’. In our view, these bodies and their purposes
are different from British hunts, though they are more akin, perhaps, to the
Countryside Alliance. The Countryside Alliance, of course, could still exist
and operate if the Bill were passed (though it would be restrained from
inciting the criminal offence). We still consider, therefore, that Article 11
would not be engaged by the passage of the Bill.
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Justification
39. Even if the Bill did interfere with the right to freedom of peaceful assembly
and association, we take the view that such interference would be held
justified for essentially the same reasons given in relation to Article 8 at
paragraphs 25-31 above.
IV. Article 1 of Protocol 1
40. Article 1 of Protocol 1 provides:
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, impair the right of a State
to enforce such laws as it deems necessary to control to use of
property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.
Potential arguments against the Bill
41. The arguments appear to be that the Bill violates Article 1 of Protocol 1
because, without justification and without providing for compensation, it:
(i) prevents landowners from using their land or allowing their land
to be used for hunting; and/or
(ii) prevents owners of dogs and hunting equipment to use those
dogs or that equipment for hunting; and/or
(iii) prevents professional hunters or those directly employed in
hunting from attaining the benefit of their contracts of
employment (namely wages) and/or exercising their profession.
15
Possessions
42. As the European Court held in James v United Kingdom (1986) 8 EHRR
123 at paragraph 37, this Article ‘in substance guarantees the right of
property’. There can be no doubt that land, dogs, and hunting equipment
are possessions within the meaning of the Article. However, the matter is
more complex with regard to contractual rights and to the fruits of a
business or profession.
43. It is clear that Article 1 of Protocol 1 applies only to existing and not to
future possessions (Marckx v Belgium (1970) 2 EHRR 330, paragraph 50).
However, in certain circumstances, a right to a future possession might
itself be a possession for the purposes of the Article. In Andrews v United
Kingdom (App. no. 37657/97, decision of 26 September 2000), the
European Court held that ‘future income itself is only a “possession” once
it has been earned, or an enforceable claim to it exists’ and in Gratzinger v
Czech Republic, it said that ‘“possessions” within the meaning of Article 1
of Protocol 1 can be either “existing possessions”… or assets, including
claims, in respect of which an applicant can argue that he has at least a
legitimate expectation that they will be realised…’ This might include
contractual rights (Association of General Practitioners v Denmark 62 DR
226).
44. In our view, therefore, the anticipated fruits of a contractual agreement will
be ‘possessions’ within the meaning of Article 1 of Protocol 1 only if
(i) there is an enforceable, legal right to them, and
(ii) there is a legitimate expectation that they will be obtained.
45. As far as we can see, the only contracts the conclusion of which would be
prevented by the Bill would be contracts of employment directly relating to
prohibited hunting. There is no reason why other contracts, say for sale of
equipment or land, should not be completed (there might, of course, be
16
issues with regard to interference with the enjoyment of the property
forming the subject of the contract, but that is another matter).
46. It is our view that nobody has a legitimate expectation to permanent
employment. Any legal right to future employment under a contract
extends only so far as the applicable notice period (as recognised by the
European Commission in Association of General Practitioners). Moreover,
we do not see how, in the current climate, an employee whose job
depends on hunting with dogs can have a legitimate expectation that he
will remain in employment. The possibility that hunting with dogs might be
made illegal has been public knowledge for several years. We respectfully
doubt whether the Joint Committee on Human Rights was right to consider
that a legitimate expectation might nonetheless survive because it is not
certain that the Bill will be approved by Parliament. This appears to us to
be inconsistent with the approach taken in National & Provincial Building
Society v United Kingdom (1988) 25 EHRR 127, in which it was held that
the applicants’ claims for restitution, partly based on a House of Lords
judgment declaring a set of regulations unlawful, were not ‘possessions’.
In part, this was because ‘it is reasonable to question whether the
[applicants] could have had a “legitimate expectation”… that the
Government would not have reacted as they did to the outcome of the
litigation [namely by introducing a Bill into Parliament retrospectively to
authorise the regulations]’ (paragraph 68).
47. Since the Bill is unlikely to come into force for quite some time yet, we
consider it likely that any contractual right to employment which could
amount to a ‘possession’ under Article 1 of Protocol 1 will no longer be in
existence.
48. However, it is likely, in our opinion, that the economic interest of a
professional hunter in continuing his profession as a business (if such a
thing exists) would be a possession for the purposes of Article 1 of
Protocol 1. In Tre Traktorer, paragraph 53, the European Court held that
‘the economic interests connected with the running of [a restaurant] were
17
“possessions” for the purposes of Article 1 of the Protocol’. (See also Karni
v Sweden 55 DR 157 at 165.)
Type of interference
49. The European Court held in James at paragraph 37 that Article 1
comprises ‘three distinct rules’:
‘the first rule, set out in the first sentence of the first paragraph,
is of a general nature and enunciates the principle of the
peaceful enjoyment of property; the second rule, contained in
the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest.’
50. It is important to decide which of these three rules applies for the purposes
of the proportionality exercise and, in particular, the requirement for
compensation. The European Commission has held that ‘it follows from
the case law of the Convention organs that as regards deprivation of
possessions there is normally an inherent right to compensation…
However, in the Commission’s view such a right to compensation is not
inherent in the second paragraph [on control]… When assessing the
proportionality of the regulation in question it will be of relevance whether
compensation is available…’ (Baner v Sweden 60 DR 128).
51. In our view, the Bill controls the use of property rather than deprives
people of their possessions. There is to be no transfer of ownership land,
dogs, or equipment; the Bill merely prohibits their use for hunting with
dogs. Moreover, the skills used by a professional hunter would be retained
by him and available to be used elsewhere, not least for the purposes of
lawful hunting.
52. We think it highly unlikely that it could be said that the degree of control
was sufficient to amount to a de facto expropriation or that any economic
18
loss caused by this control could itself be held to be a deprivation of
property. Firstly, economic gains from use of property are future
possessions which cannot, in our opinion, legitimately be expected to
materialise in this case. Secondly, while accepting the possibility of de
facto expropriation if the enjoyment of property is so constrained that it is
no longer of any real use, the European Court has made clear that there
can be no deprivation while there remains some substance in the right to
enjoy the property in question, even if some economic loss is sustained.
For example, in Matos e Silva v Portugal (1997) 24 EHRR 573, at
paragraph 85, the European Court held that the applicants were not
deprived of their property by steps taken to expropriate their land for a
nature reserve and to prevent them working the land. This was so even
though the Court recognised that ‘the disputed measures have… greatly
reduced [the applicants’ right to deal with and use their possessions] in
practice… and affect the very substance of ownership in that three of them
recognise in advance the lawfulness of expropriation’.
Justification
53. An interference with property rights may be justified if it is in the ‘public
interest’, in the case of a deprivation, or the ‘general interest’, in the case
of control of use. The Court has held that this requires a balancing
exercise to be carried out in much the same way as that required by the
second paragraphs of Articles 8 and 11, i.e. that there has to be a
legitimate aim and the interference has to satisfy the test of proportionality.
However, the requirements are less stringent. The text is not identical:
there is no requirement for the interference to be “necessary” in a
democratic society. The European Court has noted in James at paragraph
46 that ‘the notion of “public interest” is necessarily extensive’ and that ‘the
Court… will respect the legislature’s judgment as to what is “in the public
interest” unless that judgment be manifestly without reasonable
foundation”.
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54. Since our view is that any interference to property rights is properly
characterised as ‘control’, the issue of compensation is a relevant but far
from decisive factor. We consider that the Bill is proportionate without it,
especially having regard to the discretionary area of judgment to be
afforded to Parliament in this sensitive area of social and economic policy.
Accordingly, it is our view that any interference with the right to property
under Article 1 of Protocol 1 is justified.1
V. Article 14
55. Article 14 provides:
The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national, property, birth or other status.
Potential arguments against the Bill
56. It could be argued that the Bill would be incompatible with Article 14
because it unjustifiably allows such hunting with dogs as falls within
Schedule 1 but criminalises all other hunting with dogs.
57. The main distinctions would seem to be between
(a) The prey: rabbits and rats may be hunted, while other wild
mammals may not;
(b) The purposes of the hunting: dogs may be used for flushing out,
to locate animals for rescue, and so on;
(c) The animals used for hunting: e.g. falconry is still permitted.
We might add that, should a court hold that contractual rights to wages were ‘possessions’
contrary to our opinion, the Bill would deprive their owners of those possessions and would
therefore trigger a right to compensation. This was the approach taken in Association of
General Practitioners.
1
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Requirements of Article 14
58. In Wandsworth LBC v Michalak [2003] WLR 617, the Court of Appeal
listed four questions to be asked when considering Article 142. These
same questions were asked by the European Court in Rasmussen v
Denmark (1985) 7 EHRR 371. They are:
(i) Do the facts fall within the ambit of one or more of the
substantive Convention provisions?
(ii) If so, was there different treatment as respects that right
between the complainant on the one hand and other persons
put forward for comparison on the other?
(iii) Were the chosen comparators in an analogous situation to the
complainant's situation?
(iv) If so, did the difference in treatment have an objective and
reasonable justification: in other words, did it pursue a legitimate
aim and did the differential treatment bear a reasonable
relationship of proportionality to the aim sought to be achieved?
Ambit
59. As noted above, we consider that the only substantive Article engaged by
the Bill is Article 1 of Protocol 1. Our view is therefore that only those
persons who own the relevant property could rely on Article 14. However,
it should be noted that ‘ambit’ is construed widely (see, for example,
paragraphs 32-41 of the judgment of Laws LJ in The Queen (on the
application of Carson) v Secretary of State for Work and Pensions [2003] 3
All ER 577) and there is a possibility that a court would consider that the
Bill had an impact sufficiently related to the rights contained in Article 8 or
Article 11 to fall within their ambit.
2
It has been stressed in a number of decisions since Michalak, as it was by Brooke LJ in that
case itself, that the four questions should not be approached in a rigid way and may well
merge into one another: see e.g. R (Purja) v Ministry of Defence [2004] 1 WLR 289,
paragraphs 47, 66, and 70.
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Different treatment
60. Clearly, there would be different treatment between a hunter whose
manner of hunting fell within the exceptions and one whose manner of
hunting did not.
61. However, in our view, this difference in treatment cannot be said to fall
within one of the prohibited grounds. While the list in Article 14 is not
exhaustive, it is clear from the wording of the Article itself and from case
law such as James (paragraph 74) that a difference in treatment will only
fall within Article 14 if it is based on a relevant ground. In Kjeldsen v
Denmark (1970) 1 EHRR 711 (paragraph 56), that was interpreted to
mean ‘a personal characteristic by which persons or groups of persons are
distinguishable from each other’.
62. It should be noted that Brooke LJ observed in Michalak at paragraph that
‘the narrow approach evidenced in Kjeldsen's case… appears to have
been superseded in… more recent decisions’ and that, in Rasmussen, the
European Court took the view that ‘there is no call to determine on what
ground this difference was based, the list of grounds appearing in Article
14 not being exhaustive’. However, we do not take this as meaning that
there is no longer a need for a ‘status’ or ‘characteristic’; rather that such
terms are accorded a relatively broad meaning. This can be seen from the
recent case of Magee v United Kingdom (2001) 31 EHRR 22, in which, at
paragraph 50, the European Court held that geographical location was not
a ‘personal characteristic’ or ‘status’ and therefore different treatment on
that basis did not violate Article 14.
63. In our view, the fact that a huntsman hunts a particular species or employs
a particular means of hunting cannot be said to be a ‘status’ even in the
broader sense of the word. Accordingly, there can be no discrimination
contrary to Article 14. However, we consider for completeness the
remaining issues under this Article below.
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Analogous situation
64. At paragraph 61 of Carson, Laws LJ reformulated this question as follows:
‘are the circumstances of X and Y so similar as to call (in the mind of a
rational and fair-minded person) for a positive justification for the less
favourable treatment of Y in comparison with X?’ To a certain degree this
question overlaps with the questions of different treatment and justification.
However, taking it alone, it seems to us that, the positions of hunters
falling within and without the exceptions are similar enough to be
analogous.
Justification
65. As the European Court said in National & Provincial, ‘Contracting States
enjoy a margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different treatment in
law’ (paragraph 88). To be justified a measure must pursue a legitimate
aim and have a reasonable relationship of proportionality with that aim
(James, paragraph 75).
66. Though it is important to recognise that it is the difference in treatment
which must be justified in Article 14, the issues raised are similar to those
already discussed above at paragraphs 25-31. We take the view that there
is ample evidence to support Parliament’s view (if that is the view at which
it finally arrives by enacting the Bill) that using dogs to chase and kill is
sufficiently different from using dogs to locate and expose wild mammals:
most of the animal welfare concerns raised by the Burns Inquiry related to
the chase and the kill. Looking at it another way, we consider that allowing
flushing out to remain lawful is also justified, since the Inquiry identified
that real difficulties would arise in upland areas if hunters were not allowed
to use dogs to flush animals out.
67. In our view, it is more difficult to sustain the difference in treatment created
by forbidding hunting with dogs while allowing hunting with birds of prey
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and forbidding the hunting with dogs of certain wild mammals while
allowing the hunting with dogs of others. Nevertheless, we take the view
that there are genuine distinctions between hunting with dogs and falconry
such that the difference in treatment would fall within the discretionary
area of judgment accorded to Parliament. We think the same applies to
hunting rats and rabbits: it would seem likely, for example, that it would be
much more difficult to shoot a rat or a rabbit than a fox or deer. And, while
there might be less of a distinction between rabbits and hares, the Burns
Inquiry concluded that hares need not be culled at all, thus, in our view,
justifying the ban on hare coursing in particular.
VI. Conclusion
68. We consider that neither Article 8 nor Article 11 is applicable in this
context. However, even if they were, we are of the opinion that any
interferences with the rights contained in those articles would be justified.
While we consider that the Bill would interfere with certain property rights,
we think that any interference would be ‘control of use’ rather than
‘deprivation’ of property and that expectations of future income under
contracts are unlikely to amount to ‘possessions’ at all. Accordingly,
compensation is not required by Article 1 of Protocol 1 and we consider
that the interferences would be justified without it. Finally, we do not
consider that there is a difference in treatment on a relevant ground for the
purposes of Article 14 but, if there is, we again take the view that it would
be justified.
69. Though some of our individual conclusions differ from those of the Court of
Session and Adams and Whaley and our opinion has considered some
issues not raised in those cases, we consider that those judgments
provide strong support for our overall conclusion, albeit that they
concerned different legislation in a different jurisdiction.
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70. Accordingly, in our view, the Bill is likely to be regarded as compatible with
the Convention if passed into law, even in the absence of a compensation
scheme.
Rabinder Singh QC
Mathew Purchase
Matrix Chambers,
Griffin Building,
Gray’s Inn,
London WC1R 5LN.
27 February 2004
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